TERRORISM

Unfortunately, living in any western country these days one cannot escape the threat of terrorism. This is highlighted by the fact that there has been a media campaign for people to be vigilant of suspicious behaviour relating to terrorism and also the number of prosecutions that have already been brought in Australia for terrorism related offences.

The offences relating to terrorism can be found under Part 5.3 of the Criminal Code Act 1995 (Cth). Hence, the offences relating to terrorism are Commonwealth offences. To avoid doubt in regards to the Federal Parliaments ability to legislate for such offences, the Commonwealth relied upon the reference power of the Constitution namely, s51(xxxvii). As per the Commonwealth and States and Territories Agreement on Terrorism and Multi-Jurisdictional Crime, 5 April 2002 it was agreed that:

The Prime Minister and State and Territory Leaders agreed that a new national framework is needed to meet the new challenges of combatting terrorism and multi-jurisdictional crime. The attacks in the United States on 11 September last year indicated that previous assumptions about the nature and potential scale of terrorism are no longer valid. In addition, they noted that international and organised criminal groups did not respect state or national borders, and their activities could also result in major harm to all Australians. They recognised the importance of effective cooperation between the jurisdictions, and the need to build on arrangements that are currently in place in adding elements to national arrangements that will respond quickly and effectively to these challenges.

….

3. To take whatever action is necessary to ensure that terrorists can be prosecuted under the criminal law, including a reference of power of specific, jointly agreed legislation, including roll back provisions to ensure that the new Commonwealth law does not override State law where that is not intended and to come into effect by 31 October 2002. The Commonwealth will have power to amend the new Commonwealth legislation in accordance with provisions similar to those which apply under Corporations arrangements. Any amendment based on the referred power will require consultation with and agreement of States and Territories, and this requirement to be contained in the legislation.

The NSW Parliament referred this power to the Commonwealth by virtue of s4 of the Terrorism (Commonwealth Powers) Act 2002.

The offence of terrorism is defined as, “a specified action or threat of action that is made with the intention of advancing a political, religious or ideological cause. The types of actions covered by the definition of "terrorist act" are set out in …..subsection 100.1(2) and include actions involving serious harm to persons, serious damage to property and interference with essential electronic systems” (see First Reading Speech below). Further, the action must be done essentially to coerce or influence a State body or intimidate the public.

The maximum penalties for terrorist related offences range between 10 years imprisonment to life imprisonment depending upon the offence:

101.6(1) Other acts done in preparation for or planning, terrorist acts – life imprisonment.

102.3(1) Membership of a terrorist organization – 10 years imprisonment.

Set out below are not only the relevant provisions of the Criminal Code Act 1995 (Cth) and the explanatory memorandum to the legislation. The case of Faheem Khalid Lodhi v Regina [2007] NSWCCA 360 (20 December 2007) is also set out below. Lodhi was the first person to be found guilty of planning for a terrorist attack in Australia and the case sets out some of the arguments that have been raised in relation to terrorism related offences.

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Part 5.3 -- Terrorism

Division 100 -- Preliminary

100.1 Definitions

(1) In this Part:

"AFP member" means:

(a) a member of the Australian Federal Police (within the meaning of the Australian Federal Police Act 1979 ); or

(b) a special member of the Australian Federal Police (within the meaning of that Act).

"Commonwealth place" has the same meaning as in the Commonwealth Places (Application of Laws) Act 1970 .

"confirmed control order" means an order made under section 104.16.

"constitutional corporation" means a corporation to which paragraph 51(xx) of the Constitution applies.

"continued preventative detention order" means an order made under section 105.12.

"control order" means an interim control order or a confirmed control order.

"corresponding State preventative detention law" means a law of a State or Territory that is, or particular provisions of a law of a State or Territory that are, declared by the regulations to correspond to Division 105 of this Act.

"express amendment" of the provisions of this Part or Chapter 2 means the direct amendment of the provisions (whether by the insertion, omission, repeal, substitution or relocation of words or matter).

"frisk search" means:

(a) a search of a person conducted by quickly running the hands over the person's outer garments; and

(b) an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person.

"funds" means:

(a) property and assets of every kind, whether tangible or intangible, movable or immovable, however acquired; and

"identification material" , in relation to a person, means prints of the person's hands, fingers, feet or toes, recordings of the person's voice, samples of the person's handwriting or photographs (including video recordings) of the person, but does not include tape recordings made for the purposes of section 23U or 23V of the Crimes Act 1914 .

"initial preventative detention order" means an order made under section 105.8.

"interim control order" means an order made under section 104.4, 104.7 or 104.9.

(b) for continued preventative detention orders--means a person appointed under section 105.2.

"issuing court" means:

(a) the Federal Court of Australia; or

(b) the Family Court of Australia; or

(c) the Federal Magistrates Court.

"Judge" means a Judge of a court created by the Parliament.

"lawyer" means a person enrolled as a legal practitioner of a federal court or the Supreme Court of a State or Territory.

"listed terrorist organisation" means an organisation that is specified by the regulations for the purposes of paragraph (b) of the definition of terrorist organisation in section 102.1.

"ordinary search" means a search of a person or of articles in the possession of a person that may include:

(a) requiring the person to remove his or her overcoat, coat or jacket and any gloves, shoes or hat; and

(b) an examination of those items.

"organisation" means a body corporate or an unincorporated body, whether or not the body:

(a) is based outside Australia; or

(b) consists of persons who are not Australian citizens; or

(c) is part of a larger organisation.

"police officer" means:

(a) an AFP member; or

(b) a member (however described) of a police force of a State or Territory.

"prescribed authority" has the same meaning as in Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 .

"preventative detention order" means an order under section 105.8 or 105.12.

"prohibited contact order" means an order made under section 105.15 or 105.16.

referring State has the meaning given by section 100.2.

"seizable item" means anything that:

(a) would present a danger to a person; or

(b) could be used to assist a person to escape from lawful custody; or

(c) could be used to contact another person or to operate a device remotely.

"senior AFP member" means:

(a) the Commissioner of the Australian Federal Police; or

(b) a Deputy Commissioner of the Australian Federal Police; or

(c) an AFP member of, or above, the rank of Superintendent.

"superior court" means:

(a) the High Court; or

(b) the Federal Court of Australia; or

(c) the Family Court of Australia or of a State; or

(d) the Supreme Court of a State or Territory; or

(e) the District Court (or equivalent) of a State or Territory.

terrorist act means an action or threat of action where:

(a) the action falls within subsection (2) and does not fall within subsection (3); and

(b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and

(c) the action is done or the threat is made with the intention of:

(i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or

(ii) intimidating the public or a section of the public.

"tracking device" means any electronic device capable of being used to determine or monitor the location of a person or an object or the status of an object.

(2) Action falls within this subsection if it:

(a) causes serious harm that is physical harm to a person; or

(b) causes serious damage to property; or

(c) causes a person's death; or

(d) endangers a person's life, other than the life of the person taking the action; or

(e) creates a serious risk to the health or safety of the public or a section of the public; or

(f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to:

(i) an information system; or

(ii) a telecommunications system; or

(iii) a financial system; or

(iv) a system used for the delivery of essential government services; or

(v) a system used for, or by, an essential public utility; or

(vi) a system used for, or by, a transport system.

(3) Action falls within this subsection if it:

(a) is advocacy, protest, dissent or industrial action; and

(b) is not intended:

(i) to cause serious harm that is physical harm to a person; or

(ii) to cause a person's death; or

(iii) to endanger the life of a person, other than the person taking the action; or

(iv) to create a serious risk to the health or safety of the public or a section of the public.

(4) In this Division:

(a) a reference to any person or property is a reference to any person or property wherever situated, within or outside Australia; and

(b) a reference to the public includes a reference to the public of a country other than Australia.

100.2 Referring States

(1) A State is a referring State if the Parliament of the State has referred the matters covered by subsections (2) and (3) to the Parliament of the Commonwealth for the purposes of paragraph 51(xxxvii) of the Constitution:

(a) if and to the extent that the matters are not otherwise included in the legislative powers of the Parliament of the Commonwealth (otherwise than by a reference under paragraph 51(xxxvii) of the Constitution); and

(b) if and to the extent that the matters are included in the legislative powers of the Parliament of the State.

This subsection has effect subject to subsection (5).

(2) This subsection covers the matters to which the referred provisions relate to the extent of making laws with respect to those matters by including the referred provisions in this Code.

(3) This subsection covers the matter of terrorist acts, and of actions relating to terrorist acts, to the extent of making laws with respect to that matter by making express amendment of this Part or Chapter 2.

(4) A State is a referring State even if a law of the State provides that the reference to the Commonwealth Parliament of either or both of the matters covered by subsections (2) and (3) is to terminate in particular circumstances.

(5) A State ceases to be a referring State if a reference by the State of either or both of the matters covered by subsections (2) and (3) terminate.

(6) In this section:

"referred provisions" means the provisions of Part 5.3 of this Code as inserted by the Criminal Code Amendment (Terrorism) Act 2002 , to the extent to which they deal with matters that are included in the legislative powers of the Parliaments of the States.

100.3 Constitutional basis for the operation of this Part

Operation in a referring State

(1) The operation of this Part in a referring State is based on:

(a) the legislative powers that the Commonwealth Parliament has under section 51 of the Constitution (other than paragraph 51(xxxvii)); and

(b) the legislative powers that the Commonwealth Parliament has in respect of matters to which this Part relates because those matters are referred to it by the Parliament of the referring State under paragraph 51(xxxvii) of the Constitution.

Note: The State reference fully supplements the Commonwealth Parliament's other powers by referring the matters to the Commonwealth Parliament to the extent to which they are not otherwise included in the legislative powers of the Commonwealth Parliament.

Operation in a non-referring State

(2) The operation of this Part in a State that is not a referring State is based on the legislative powers that the Commonwealth Parliament has under section 51 of the Constitution (other than paragraph 51(xxxvii)).

(3) The operation of this Part in the Northern Territory, the Australian Capital Territory or an external Territory is based on:

(a) the legislative powers that the Commonwealth Parliament has under section 122 of the Constitution to make laws for the government of that Territory; and

(b) the legislative powers that the Commonwealth Parliament has under section 51 of the Constitution (other than paragraph 51(xxxvii)).

Despite subsection 22(3) of the Acts Interpretation Act 1901 , this Part as applying in those Territories is a law of the Commonwealth.

Operation outside Australia

(4) The operation of this Part outside Australia and the external Territories is based on:

(a) the legislative powers that the Commonwealth Parliament has under paragraph 51(xxix) of the Constitution; and

(b) the other legislative powers that the Commonwealth Parliament has under section 51 of the Constitution (other than paragraph 51(xxxvii)).

100.4 Application of provisions

Part generally applies to all terrorist acts and preliminary acts

(1) Subject to subsection (4), this Part applies to the following conduct:

(a) all actions or threats of action that constitute terrorist acts (no matter where the action occurs, the threat is made or the action, if carried out, would occur);

(b) all actions ( preliminary acts ) that relate to terrorist acts but do not themselves constitute terrorist acts (no matter where the preliminary acts occur and no matter where the terrorist acts to which they relate occur or would occur).

Note: See the following provisions:

(a) subsection 101.1(2);

(b) subsection 101.2(4);

(c) subsection 101.4(4);

(d) subsection 101.5(4);

(e) subsection 101.6(3);

(f) section 102.9.

Operation in relation to terrorist acts and preliminary acts occurring in a State that is not a referring State

(2) Subsections (4) and (5) apply to conduct if the conduct is itself a terrorist act and:

(a) the terrorist act consists of an action and the action occurs in a State that is not a referring State; or

(b) the terrorist act consists of a threat of action and the threat is made in a State that is not a referring State.

(3) Subsections (4) and (5) also apply to conduct if the conduct is a preliminary act that occurs in a State that is not a referring State and:

(a) the terrorist act to which the preliminary act relates consists of an action and the action occurs, or would occur, in a State that is not a referring State; or

(b) the terrorist act to which the preliminary act relates consists of a threat of action and the threat is made, or would be made, in a State that is not a referring State.

(4) Notwithstanding any other provision in this Part, this Part applies to the conduct only to the extent to which the Parliament has power to legislate in relation to:

(a) if the conduct is itself a terrorist act--the action or threat of action that constitutes the terrorist act; or

(b) if the conduct is a preliminary act--the action or threat of action that constitutes the terrorist act to which the preliminary act relates.

(5) Without limiting the generality of subsection (4), this Part applies to the action or threat of action if :

(a) the action affects, or if carried out would affect, the interests of:

(i) the Commonwealth; or

(ii) an authority of the Commonwealth; or

(iii) a constitutional corporation; or

(b) the threat is made to:

(i) the Commonwealth; or

(ii) an authority of the Commonwealth; or

(iii) a constitutional corporation; or

(c) the action is carried out by, or the threat is made by, a constitutional corporation; or

(d) the action takes place, or if carried out would take place, in a Commonwealth place; or

(e) the threat is made in a Commonwealth place; or

(f) the action involves, or if carried out would involve, the use of a postal service or other like service; or

(g) the threat is made using a postal or other like service; or

(h) the action involves, or if carried out would involve, the use of an electronic communication; or

(i) the threat is made using an electronic communication; or

(j) the action disrupts, or if carried out would disrupt, trade or commerce:

(i) between Australia and places outside Australia; or

(ii) among the States; or

(iii) within a Territory, between a State and a Territory or between 2 Territories; or

(k) the action disrupts, or if carried out would disrupt:

(i) banking (other than State banking not extending beyond the limits of the State concerned); or

(ii) insurance (other than State insurance not extending beyond the limits of the State concerned); or

(l) the action is, or if carried out would be, an action in relation to which the Commonwealth is obliged to create an offence under international law; or

(m) the threat is one in relation to which the Commonwealth is obliged to create an offence under international law.

(6) To avoid doubt, subsections (2) and (3) apply to a State that is not a referring State at a particular time even if no State is a referring State at that time.

100.5 Application of Acts Interpretation Act 1901

(1) The Acts Interpretation Act 1901 , as in force on the day on which Schedule 1 to the Criminal Code Amendment (Terrorism) Act 2003 commences, applies to this Part.

(2) Amendments of the Acts Interpretation Act 1901 made after that day do not apply to this Part.

(5) If, in a prosecution for an offence (the prosecuted offence ) against a subsection of this section, the trier of fact is not satisfied that the defendant is guilty of the offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence (the alternative offence ) against another subsection of this section, the trier of fact may find the defendant not guilty of the prosecuted offence but guilty of the alternative offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

101.4 Possessing things connected with terrorist acts

(1) A person commits an offence if:

(a) the person possesses a thing; and

(b) the thing is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and

(c) the person mentioned in paragraph (a) knows of the connection described in paragraph (b).

Penalty: Imprisonment for 15 years.

(2) A person commits an offence if:

(a) the person possesses a thing; and

(b) the thing is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and

(c) the person mentioned in paragraph (a) is reckless as to the existence of the connection described in paragraph (b).

Penalty: Imprisonment for 10 years.

(3) A person commits an offence under subsection (1) or (2) even if:

(a) a terrorist act does not occur; or

(b) the thing is not connected with preparation for, the engagement of a person in, or assistance in a specific terrorist act; or

(c) the thing is connected with preparation for, the engagement of a person in, or assistance in more than one terrorist act.

(5) Subsections (1) and (2) do not apply if the possession of the thing was not intended to facilitate preparation for, the engagement of a person in, or assistance in a terrorist act.

Note: A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3)).

(6) If, in a prosecution for an offence (the prosecuted offence ) against a subsection of this section, the trier of fact is not satisfied that the defendant is guilty of the offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence (the alternative offence ) against another subsection of this section, the trier of fact may find the defendant not guilty of the prosecuted offence but guilty of the alternative offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

101.5 Collecting or making documents likely to facilitate terrorist acts

(1) A person commits an offence if:

(a) the person collects or makes a document; and

(b) the document is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and

(c) the person mentioned in paragraph (a) knows of the connection described in paragraph (b).

Penalty: Imprisonment for 15 years .

(2) A person commits an offence if:

(a) the person collects or makes a document; and

(b) the document is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and

(c) the person mentioned in paragraph (a) is reckless as to the existence of the connection described in paragraph (b).

Penalty: Imprisonment for 10 years.

(3) A person commits an offence under subsection (1) or (2) even if:

(a) a terrorist act does not occur; or

(b) the document is not connected with preparation for, the engagement of a person in, or assistance in a specific terrorist act; or

(c) the document is connected with preparation for, the engagement of a person in, or assistance in more than one terrorist act.

(5) Subsections (1) and (2) do not apply if the collection or making of the document was not intended to facilitate preparation for, the engagement of a person in, or assistance in a terrorist act.

Note: A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3)).

(6) If, in a prosecution for an offence (the prosecuted offence ) against a subsection of this section, the trier of fact is not satisfied that the defendant is guilty of the offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence (the alternative offence ) against another subsection of this section, the trier of fact may find the defendant not guilty of the prosecuted offence but guilty of the alternative offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

101.6 Other acts done in preparation for, or planning, terrorist acts

(1) A person commits an offence if the person does any act in preparation for, or planning, a terrorist act.

Penalty: Imprisonment for life.

(2) A person commits an offence under subsection (1) even if:

(a) a terrorist act does not occur; or

(b) the person's act is not done in preparation for, or planning, a specific terrorist act; or

(c) the person's act is done in preparation for, or planning, more than one terrorist act.

The Security Legislation Amendment (Terrorism) Bill 2001 (the Bill) amends the Criminal Code Act 1995 (the Criminal Code) to combat terrorism by ensuring that there are criminal offences to deal with terrorism and membership of a terrorist organisation, or other links to a terrorist organisation, may be an offence.

The Bill inserts a series of new terrorism offences into the Criminal Code, all of which carry a penalty of life imprisonment. The offences are: engaging in a terrorist act; providing or receiving training for a terrorist act; directing organisations concerned with a terrorist act; possessing things connected with a terrorist act; collecting or making documents likely to facilitate a terrorist act; and acts in preparation for, or planning, a terrorist act. With the exception of the offence of engaging in a terrorist act, it is not necessary for a terrorist act to actually occur for a person to be prosecuted for a terrorism offence.

The Bill also includes a regime for the Attorney-General to proscribe an organisation that has a specified terrorist connection or that has endangered, or is likely to endanger, the security or integrity of the Commonwealth, and to make membership or other specified links with such an organisation an offence.

The Bill replaces the treason offence in the Crimes Act 1914 with a new offence, framed in accordance with contemporary drafting practice and the standard approach under the Criminal Code.

Finally, the Bill proposes amendments to the Australian Protective Service Act 1987 and the Crimes (Aviation) Act 1991 to ensure that Australian Protective Service has powers to deal with terrorist related offences, and to exercise the aircraft security officer function on intra-state flights.

Financial Impact

It is not expected that the Bill will have a direct financial impact.

NOTES ON CLAUSES

Part 1 - Preliminary

Clause 1: Short Title

This clause is a formal provision specifying the short title of the Bill.

Clause 2: Commencement

Subclause 2(1) provides that each provision of the Security Legislation Amendment (Terrorism) Act 2002 (the Act) listed in column 1 of the table in clause 2 commences, or is taken to have commenced, on the day specified in column 2 of the table.

Item 1 of the table provides that clauses 1-3 of the Bill and any other clauses not covered in the table commence on the day on which the Act receives the Royal Assent.

Item 2 of the table provides that item 1 of Schedule 1, the proposed amendment to the Criminal Code Act 1995 (the Criminal Code) to insert a new Chapter 5 into the Criminal Code to deal with offences relating to the integrity and security of the Commonwealth, commences on the day on which the Act receives the Royal Assent, subject to subclause (3).

Item 3 of the table provides that item 2 of Schedule 1, which inserts into Chapter 5 of the Criminal Code a new Part 5.1, commences the day after the Act receives the Royal Assent.

Item 4 of the table provides that item 3 of Schedule 1, which inserts into Chapter 5 of the Criminal Code a new Part 5.3 dealing with preliminary aspects of the new terrorism offences, commences the day after the Act receives the Royal Assent, subject to subclause (4).

Item 5 of the table provides that items 4 and 5 of Schedule 1, which insert into Chapter 5 of the Criminal Code the terrorism offences and an application provision in relation to the terrorism offences, commence immediately after the start of the day the Act receives the Royal Assent.

Item 6 of the table provides that item 6 of Schedule 1, which amends subsection 4J(7) of the Crimes Act 1914 to amend the list of offences that may not be dealt with summarily, commences the day after this Act receives the Royal Assent, subject to subsection (5).

Item 7 of the table provides that item 7 of Schedule 1, which substitutes a new subsection for subsection 4J(7) of the Crimes Act 1914, commences

immediately after the commencement of item 2 of Schedule 1, subject to subsection (6).

Item 8 of the table provides that items 8 to 18 of Schedule 1, which are consequential amendments to the Crimes Act 1914 and the Migration Act 1958, commence on the day after the Act receives the Royal Assent.

Item 9 of the table provides that item 1 of Schedule 2, the first of the two proposed amendments to the Australian Protective Service Act 1987 to implement the air security officer scheme, commences on the later of the commencement of Division 72 of the Criminal Code and the start of the day on which the Act receives the Royal Assent.

Item 10 of the table provides that item 2 of Schedule 2, the second of the proposed amendments to the Australian Protective Service Act 1987 to implement the air security officer scheme, commences at the same time as Division 101 of the Criminal Code commences.

Item 11 of the table provides that items 3 and 4 of Schedule 2, the proposed amendments to the Crimes (Aviation) Act 1991 to implement the air security officer scheme, commence on the 28th day after the day on which the Act receives the Royal Assent.

Subclause 2(2) provides that Column 3 of the table is for additional information that is not part of the Act. Relevant commencement dates may be entered into Column 3 by users of the Explanatory Memorandum in the future.

Subclause 2(3) provides that if either the Criminal Code Amendment (Espionage and Related Offences) Act 2002 or the Suppression of the Financing of Terrorism Act 2002 receives the Royal Assent on or before the day on which the Act receives the Royal Assent, the provision covered by item 2 of the table does not commence at all. Item 3 of Schedule 1 inserts a new Chapter 5 into the Criminal Code to deal with offences relating to the integrity and security of the Commonwealth. Subclause 2(3) has been included because, at the time of drafting, it could not be known which of the three Acts containing the provision establishing the new Chapter 5 would commence first.

Subclause 2(4) provides that if the Suppression of Financing of Terrorism Act 2002 receives the Royal Assent on the same day or before the day that the Act receives the Royal Assent, the provision covered by item 4 of the table does not commence at all. Item 4 of the table deals with the commencement of the insertion of the preliminary aspects of the new terrorism offences into the Criminal Code. Subclause 2(4) has been included because, at the time of drafting, it could not be known whether the Act or the Suppression of Financing of Terrorism Bill 2002, which contains an equivalent provision, would commence first.

Subclause 2(5) provides that if item 1 of Schedule 2 to the Criminal Code Amendment (Espionage and Related Offences) Act 2002 commences before or at the same time as item 2 of Schedule 1 to the Act, then item 6 of Schedule 1 to the Act does not commence at all. Item 6 of Schedule 1 amends subsection 4J(7) of the Crimes Act 1914 to amend the list of offences that may not be dealt with summarily.

Subclause 2(5) has been included because, at the time of drafting, it could not be known whether the Act or the Criminal Code Amendment (Espionage and Related Offences) Act 2002 would commence first.

Subclause 2(6) provides that if item 1 of Schedule 2 to the Criminal Code Amendment (Espionage and Related Offences) Act 2002 does not commence before or at the same time as item 2 of Schedule 1 to the Act, then item 7 of Schedule 1 to the Act does not commence at all. Item 7 of Schedule 1 substitutes a new subsection for subsection 4J(7) of the Crimes Act 1914.

Subclause 2(6) has been included because, at the time of drafting, it could not be known whether the Act or the Criminal Code Amendment (Espionage and Related Offences) Act 2002 would commence first.

Clause 3: Schedule(s)

Clause 3 provides that each Act specified in a schedule is amended as set out in the Schedule concerned.

Schedule 1 - Amendments relating to treason and terrorism

Item 1 - the Schedule (after Chapter 4 of the Criminal Code)

Item 1 inserts a new Chapter 5 into the Criminal Code. Proposed Chapter 5 deals with the integrity and security of the Commonwealth. The Criminal Code Amendment (Espionage and Related Offences) Act 2002 and the Suppression of the Financing of Terrorism Act 2002 also contain an item inserting a new Chapter 5 into the Criminal Code. Each Bill has a special commencement provision ensuring that the first Act to receive the Royal Assent will insert the new Chapter 5. This is necessary because, at the time of drafting, it cannot be known which Act will commence first.

Item 2 - The Schedule (Chapter 5 of the Criminal Code)

Item 2 inserts into Chapter 5 of the Criminal Code a new Part 5.1 - Treason of the Criminal Code. Item 2 refers to insertion of the part "in the numerical position appropriate" because both the Criminal Code Amendment (Espionage and Related Offences) Act 2002 and the Suppression of the Financing of Terrorism Act 2002 also propose to insert provisions into Chapter 5 and, at the time of drafting, it cannot be known which Act will commence first.

Part 5.1 - Treason

Division 80 - Treason

Proposed section 80.1: Treason

Proposed section 80.1 of the Criminal Code replicates the existing treason offence in section 24 of the Crimes Act subject to changes described below designed to modernise the offence and remove certain anomalies and limitations. A number of the amendments to the treason offence reflect recommendations of the Gibbs Committee review of Commonwealth Criminal Law and the Canadian Law Reform Commission report on Recodifying Criminal Law.

Each paragraph of proposed subsection 80.1(1) is an alternative basis on which the offence of treason may be made out. Paragraph 80.1(1)(f), described below, is entirely new and its inclusion reflects the most significant difference between the proposed section 80.1 and the existing section 24. The other paragraphs in subsection 80.1(1) are based on paragraphs of the existing subsection 24(1) of the Crimes Act.

Proposed paragraph 80.1(1)(a) makes it an offence for a person to cause the death of the Sovereign, the heir apparent or the Consort of the Sovereign. The proposed offence uses the phrase "causes the death of" which is the modern drafting style reflected in, for example, paragraph 71.2(1)(c) of the Criminal Code. This replaces the more old fashioned and limited term "kills", which appears in the existing subsection 24(1). The phrase 'causes the death of' is also employed in sections 5.1.9 to 5.1.11 of the Model Criminal Code (see Discussion Paper: Fatal Offences Against the Person, June 1998). The Model Criminal Code Discussion Paper concludes that "the reckless killer foreseeing the probability of causing death is `just as blameworthy' as the intentional killer"(p.59) . This paragraph is mirrored on part of the existing paragraph 24(1)(a) and part of the existing paragraph 24(1)(b) of the Crimes Act.

Proposed paragraph 80.1(1)(b) makes it an offence to cause harm to the Sovereign that results in their death. The proposed offence uses the phrase "causes harm" in line with Criminal Code precedents at paragraph 71.6(1)(a) and paragraph 147.1(1)(b). The term `harm' is defined in the Criminal Code Dictionary as physical harm or harm to a person's mental health, whether temporary or permanent. However, it does not include being subjected to any force or impact that is within the limits of what is acceptable as incidental to social interaction or to life in the community. The proposed offence also uses the phrase "resulting in the Sovereign's death". This paragraph is mirrored on part of the existing paragraph 24(1)(a). The two new phrases reflect the modern drafting style of the Code and replace the older terms of "maims and wounds" in the existing paragraph 24(1)(a) of the Crimes Act.

References to the "eldest son" and to the "Queen" in the existing paragraph 24(1)(b) have been amended to employ gender neutral language.

Proposed paragraph 80.1(1)(c) makes it an offence to cause harm to, imprison or restrain the Sovereign. As noted above, `harm' is defined in the Criminal Code Dictionary. Unlike proposed paragraph 80.1(1)(b), this offence does not require that the physical harm directed at the Sovereign leads to death. This paragraph is mirrored on part of the existing paragraph 24(1)(a) of the Crimes Act.

Proposed paragraph 80.1(1)(d) makes it an offence to levy war, or do any act preparatory to levying war, against the Commonwealth. This is a replication of the existing paragraph in section 24(1)(c) of the Crimes Act.

Proposed paragraph 80.1(1)(e) makes it an offence for a person to engage in conduct that assists by any means whatever, with the intent to assist, an enemy at war with the Commonwealth, whether or not the existence of a state of war has been declared. The "enemy" is defined within the section as one specified by proclamation made for the purpose of this paragraph to be an enemy at war with the Commonwealth. This is a replication of the existing paragraph 24(1)(d) of the Crimes Act.

Proposed paragraph 80.1(1)(f) makes it an offence to engage in conduct that assists by any means whatever, with the intent to assist, another country or an organisation that is engaged in armed hostilities with the Australian Defence Force. "Organisation" is defined as a body corporate or an unincorporated body whether or not the body is based outside of Australia, consists of persons who are not Australian citizens, or is part of a larger organisation (see proposed section 80.1(8)). This paragraph ensures that treason provisions can apply not only when Australia is "at war" but also when Australia is engaged in armed hostilities that do not constitute a formally declared war. The paragraph also removes the need for an enemy to be proclaimed and makes it clear that hostilities can involve a foreign organisation rather than a foreign country. These amendments are designed to ensure that the offence of treason reflects the realities of modern conflict that do not necessarily involve a declared war against a proclaimed enemy. The new paragraph is therefore a contemporary variant of the existing paragraph 24(1)(d) of the Crimes Act, now to be reflected in proposed paragraph 80.1(e).

Proposed paragraphs 80.1(1)(e) and 80.1(1)(f) now both include the term "engages in conduct" because under the Criminal Code, fault attaches to individual physical elements of conduct, circumstance or result. The proposed

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paragraphs distinguish the conduct element of the offence, for which intention must be proven, from the result element, for which recklessness or knowledge must be proven. This is the way section 24 probably would have been read, but this amendment makes this explicit.

Proposed paragraph 80.1(1)(g) makes it an offence for a person to instigate a person who is not an Australian citizen to make an armed invasion of the Commonwealth. The "person" who instigates a non-Australian citizen to undertake such action would not necessarily have to be an Australian citizen either. This ensures that action by, for example, Australian residents, can be treated as treasonous. This paragraph is mirrored in part on existing paragraph 24(1)(e).

Proposed paragraph 80.1(1)(h) makes it an offence for any person to form an intention to do any act referred to in the proceeding paragraphs and to manifest that intention by an overt act. This paragraph is mirrored on existing paragraph 24(1)(f).

The maximum penalty for an offence against this section is life imprisonment. Although the existing subsection 24(1) of the Crimes Act is expressed as carrying the death penalty as a maximum, this is to be read as a maximum of life imprisonment under the Death Penalty Abolition Act 1973. The explicit reference to a maximum penalty of life imprisonment is therefore merely a tidying up amendment.

Proposed subsection 80.1(2) replicates the existing subsection 24(2) as contained in the Crimes Act with some minor language changes. Proposed paragraph 80.1(2)(a) makes it an offence for anyone to assist in anyway a person who has committed treason with the intention of allowing him or her to escape apprehension or punishment. The offence has been extended slightly by adding to "escape apprehension", as well as punishment. The terminology "in order to enable" has been replaced with the more modern Code style language of "with the intention of allowing". Proposed paragraph 80.1(2)(b) makes knowledge of proposed treason an offence and requires a person with that knowledge to inform a constable, as defined in the new proposed subsection 80.1(8), of that fact. Alternatively, a person with that knowledge must use other reasonable endeavours to prevent the treason occurring. The penalty for an offence against this subsection is life imprisonment.

Proposed subsections 80.1(3) and 80.1(4) replace the existing procedural requirements for the offence of treason as contained in subsections 24AC(1) and (2) of the Crimes Act. Proposed subsection 80.1(3) specifies that any proceedings brought in respect of a treason offence in proposed subsections 80.1(1) or 80.1(2) must be instituted with the written consent of the Attorney-General. This is a departure from the Crimes Act model where the written consent of a person authorised by the Attorney-General was sufficient for the purposes of the section. This is in line with section 270.11 of the Code, which requires the Attorney-General's consent before proceedings for an offence against Division 7 can be commenced. The language of the proposed subsection is also further modernised to omit the old trial/summary distinction and replace it with "proceedings for an offence" in line with the language of section 270.11 of the Criminal Code. The consent requirement still applies to any form of proceeding, but is worded more efficiently.

Proposed subsection 80.1(4) provides that a person may be arrested for a treason offence or a warrant for their arrest issued without subsection 80.1(3) consent. The person may then be charged and remanded in custody or on bail. At this point no further proceedings may be taken until consent under subsection 80.1(3) is obtained. The section also provides that a person must be discharged if proceedings are not continued within a reasonable time. This is a standard corollary to an Attorney-General's consent provision, and ensures that the requirement for consent regulates the conduct of proceedings, but does not prevent arrest, charge and remand, which may require urgent action and be incompatible with the careful consideration of the consent decision. The consent requirement is appropriate because the treason offence is an offence against the nation and therefore special considerations are relevant as to whether a prosecution is justified. This supplements the general requirement for the Attorney-General's consent in certain cases where the conduct constituting an offence occurs wholly in a foreign country, under section 16.1 of the Criminal Code.

Proposed subsection 80.1(5) replicates the existing Crimes Act subsection 24(3). This subsection contains a rule of procedure which provides that where a person is charged with intent to commit any of the treason offences under subsection 24(1) and that intention was manifested by an overt act, evidence of the overt act is not to be admitted unless the overt act is alleged in the indictment.

Proposed subsection 80.1(6) extends the application of 24F of the Crimes Act to this new section 80.1 in the same way it would if this section were a provision of Part II of that Act. Section 24F outlines circumstances where specified acts done in good faith (for example, legitimate criticism or protest) are not unlawful, including for the purposes of the treason offence.

Proposed subsection 80.1(7) would apply Category D geographical jurisdiction, as set out in section 15.4 of the Criminal Code, to the offences proposed in 80.1(1) and 80.1(2).

Category D geographical jurisdiction will be satisfied whether or not the

conduct constituting the alleged offence occurs in Australia and whether or not a result of the conduct constituting the alleged offence occurs in Australia. This jurisdiction is appropriate due to the transnational nature of terrorist activities, to ensure that a person cannot escape prosecution or punishment based on a jurisdictional loophole.

Proposed subsection 80.1(8) contains definitions of terms used in proposed Part 5.1 of the Criminal Code:

Constable is defined as a member or special member of the Australian Federal Police or a member of the police force or police service of a State or Territory. This definition corresponds to the definition of "constable" in section 3 of the Crimes Act . This definition is used in proposed subsection 80.1(2) to define those to who a treason offence must be reported.

Organisation is defined to mean a body corporate or an unincorporated body, whether or not the body is based outside Australia, consists of persons who are not Australian citizens or is part of a larger organisation. This definition is used in proposed subparagraph 80.1(f)(ii) to describe groups, the assistance of which is treason. The definition is used in the same sense in proposed subsection 102.2(1).

Item 3 - The Schedule (at the end of Chapter 5 of the Criminal Code)

Item 3 insert a new Part 5.3 - Terrorism into the Criminal Code.

Part 5.3 - Terrorism

Division 100 - Preliminary

Proposed section 100.1 - Definitions

Proposed section 100.1 contains definitions of terms used in proposed Part 5.3 of the Criminal Code.

Commonwealth place is given the same meaning as in the Commonwealth Places (Application of Laws) Act 1970 where it means a place (not being the seat of government) with respect to which the Parliament, by virtue of section 52 of the Constitution, has, subject to the Constitution, exclusive power to make laws for the peace, order, and good government of the Commonwealth. The new financing of terrorism offence in proposed section 103.1 will extend to actions that take place in a Commonwealth place. This definition is one of the mechanisms that aligns the ambit of the offence with the scope of Commonwealth legislative power under the Constitution.

constitutional corporation is defined to mean a corporation within the terms of paragraph 51(xx) of the Constitution. Paragraph 51(xx) of the Constitution covers foreign, trading and financial corporations. The new financing of terrorism offence in proposed section 103.1 will extend to actions that affect constitutional corporations or that are carried out by constitutional corporations. This definition is one of the mechanisms that aligns the ambit of the offence with the scope of Commonwealth legislative power under the Constitution.

funds is defined as property and assets of every kind and legal documents or instruments in any form. The definition is broad in scope and is derived from Article 1 of the International Convention for the Suppression of the Financing of Terrorism. The breadth of the definition will ensure that the financing of terrorism offence applies regardless of whether a person facilitates a terrorist act through the provision of money, equipment or weapons.

organisation is defined as a body corporate or an unincorporated body, whether or not it is based in Australia, consists of persons who are not Australian citizens, or is part of a larger organisation. The definition of organisation is relevant to the proscribed organisations offences in Schedule 1 to Security Legislation Amendment (Terrorism) Bill 2002. The definition was included to defeat any argument that a group of persons is not an organisation because it does not have a particular formal attribute or structure.

terrorist act is defined to mean a specified action or threat of action that is made with the intention of advancing a political, religious or ideological cause. The types of actions covered by the definition of "terrorist act" are set out in proposed subsection 100.1(2) and include actions involving serious harm to persons, serious damage to property and interference with essential electronic systems. The new offence in proposed section 103.1 will apply to the financing of actions which fall within this definition.

Lawful advocacy, protest and dissent, and industrial action are expressly excluded from the ambit of the definition.

Proposed subsection 100.1(2) sets out the types of action referred to in the proposed subsection 100.1(1) that can constitute a "terrorist act". The types of actions listed involve serious harm, damage or disruption. A terrorist act includes action that involves serious harm to a person or serious damage to property, endangers life, creates a serious risk to the health or safety of the public or a section of the public, or is designed to seriously interfere with, seriously disrupt, or destroy, an electronic system. Electronic systems include information systems; telecommunications systems; financial systems; and systems used for essential government services,

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essential public utilities and transport providers.

Proposed subsection 100.1(3) provides that a reference in proposed Division 100 to any person or property is a reference to any person or property within or outside Australia. It also provides that a reference to the public includes a reference to the public of a foreign country.

Proposed section 100.2 - Constitutional basis for offences

Proposed section 100.2 provides a broad constitutional basis for the new financing of terrorism offence in proposed section 103.1 and the proposed terrorism offences which will also be inserted into Part 5.3. An action or threat of action will give rise to an offence under Part 5.3 where it is within the scope of the Commonwealth's legislative power under the Constitution.

Proposed subsection 100.2(2) draws on the various bases of Commonwealth legislative power in section 51 of the Constitution to specify particular circumstances in which an action or threat of action will give rise to an offence. These include circumstances where the action:

* affects the interests of the Commonwealth, a Commonwealth authority, or a foreign, trading or financial corporation;

* is an action in relation to which the Commonwealth is obliged to create an offence under international law (for example, United Nations Security Council Resolution 1373 obliges Australia to criminalise the collection and provision of funds for terrorist acts).

Proposed subsection 101.1(1) provides that it is an offence for a person to engage in a terrorist act. Terrorist act is defined in proposed section 100.1. The maximum penalty is life imprisonment.

Proposed subsection 101.1(2) applies Category D geographical jurisdiction, as set out in section 15.4 of the Criminal Code, to an offence against subsection 101.1(1). Category D jurisdiction is unrestricted. Its application to the offence of engaging in a terrorist act means that the offence will be committed whether or not the conduct or the result of the conduct constituting the offence occurs in Australia.

Proposed section 101.2(1) provides that a person commits an offence if the person provides or receives training in the making of use of firearms, explosives, or chemical, biological, radiological or nuclear weapons and the training is connected with preparation for, the engagement of a person in, or assistance in a terrorist act. Terrorist act is defined in proposed section 100.1. The maximum penalty is life imprisonment.

Proposed subsection 101.2(2) provides that absolute liability applies to the provision or receipt of training is connected with preparation for, the engagement of a person in, or assistance in a terrorist act. This means that, as long as the person's provision or receipt of the training was voluntary, the person's mental state is not relevant.

Subsection 6.2(2) of the Criminal Code provides that if a law that creates an offence provides that absolute liability applies to a particular physical element of the offence:

(a) there are no fault elements for that physical element; and

(b) the defence of mistake of fact under section 9.2 of the Criminal Code is unavailable in relation to that physical element.

Absolute liability is appropriate where fault is required to be proven in relation to another element or other elements of the offence, and there is no legitimate ground for the person to allow a situation to occur where the absolute liability element occurs. In this case, a person who provides or receives training in the making or use of firearms, explosives or weapons should be on notice that this should not be done if there is any possibility of this being connected to a terrorist act. The person must avoid this possibility arising, and if they cannot, they should not provide or receive the training.

It is therefore not necessary to prove fault in relation to the terrorist connection. If it exists in fact, the person is liable.

Subsection 6.2(3) of the Criminal Code provides that the existence of absolute liability does not make any other defence unavailable. Criminal Code defences that may be relevant and that would prevent a person being liable notwithstanding the application of absolute liability include intervening

Proposed subsection 101.2(3) provides that a person commits an offence under subsection (1) even if the terrorist act does not occur.

Proposed subsection 101.2(4) provides that the offence in subsection (1) does not apply if the person proves that he or she was not reckless with respect to the circumstance in paragraph (1)(b).

Proposed subsection 101.2(5) applies Category D geographical jurisdiction, as set out in section 15.4 of the Criminal Code, to an offence against subsection 101.2(1). Category D jurisdiction is unrestricted. Its application to the offence of providing or receiving training for terrorist acts means that the offence will be committed whether or not the conduct or the result of the conduct constituting the offence occurs in Australia.

Proposed subsection 101.3(1) provides that a person commits an offence if the person directs the activities of an organisation that is directly or indirectly concerned with fostering preparation for, the engagement of a person in, or assistance in a terrorist act. Terrorist act is defined in proposed section 100.1. The maximum penalty is life imprisonment.

Proposed subsection 101.3(2) provides that a person commits an offence under subsection (1) even if the terrorist act does not occur.

Proposed subsection 101.3(3) applies Category D geographical jurisdiction, as set out in section 15.4 of the Criminal Code, to an offence against subsection 101.3(1). Category D jurisdiction is unrestricted. Its application to the offence of directing organisations concerned with terrorist acts means that the offence will be committed whether or not the conduct or the result of the conduct constituting the offence occurs in Australia.

Proposed subsection 101.4(1) provides that a person commits an offence if the person possesses a thing and the thing is connected with preparation for, the engagement of a person in, or assistance in a terrorist act. Terrorist act is defined in proposed section 100.1. The maximum penalty is life imprisonment.

Proposed subsection 101.4(2) provides that absolute liability applies to the possession of things connected with preparation for, the engagement of a person in, or assistance in a terrorist act.

Subsection 6.2(2) of the Criminal Code provides that if a law that creates an offence provides that absolute liability applies to a particular physical element of the offence:

(a) there are no fault elements for that physical element; and

(b) the defence of mistake of fact under section 9.2 of the Criminal Code is unavailable in relation to that physical element.

Absolute liability is appropriate where fault is required to be proven in relation to another element or other elements of the offence, and there is no legitimate ground for the person to allow a situation to occur where the absolutely liability element occurs. In this case, a person who possesses things in connection with preparation for, the engagement of a person in, or assistance in a terrorist act, should be on notice that this should not be done if there is any possibility of this being connected to a terrorist act. The person must avoid this possibility arising, and if they cannot, they should not possess the thing.

It is therefore not necessary to prove fault in relation to the terrorist connection. If it exists in fact, the person is liable.

Subsection 6.2(3) of the Criminal Code provides that the existence of absolute liability does not make any other defence unavailable. Criminal Code defences that may be relevant and that would prevent a person being liable notwithstanding the application of absolute liability include intervening conduct or event (section 10.1), duress (section 10.2), sudden or extraordinary emergency (section 10.3) and self-defence (section 10.4).

Proposed subsection 101.4(3) provides that a person commits an offence under subsection (1) even if the terrorist act does not occur.

Subsection 101.4(4) provides that the offence in subsection (1) does not apply if the person proves that he or she was not reckless with respect to the circumstance in paragraph (1)(b).

Proposed subsection 101.4(5) applies Category D geographical jurisdiction, as set out in section 15.4 of the Criminal Code, to an offence against subsection 101.4. Category D jurisdiction is unrestricted. Its application to the offence of possessing things connected with terrorist acts means that the offence will be committed whether or not the conduct or the result of the conduct constituting the offence occurs in Australia.

Proposed subsection 101.5(1) provides that a person commits an offence if the person collects or makes a document and the document is connected with preparation for, the engagement of a person in, or assistance in a terrorist act. Terrorist act is defined in proposed section 100.1. The maximum penalty is life imprisonment.

Subsection 6.2(2) of the Criminal Code provides that if a law that creates an offence provides that absolute liability applies to a particular physical element of the offence:

(a) there are no fault elements for that physical element; and

(b) the defence of mistake of fact under section 9.2 of the Criminal Code is unavailable in relation to that physical element.

Absolute liability is appropriate where fault is required to be proven in relation to another element or other elements of the offence, and there is no legitimate ground for the person to allow a situation to occur where the absolutely liability element occurs. In this case, a person who collects or makes a document likely to facilitate a terrorist act should be on notice that this should not be done if there is any possibility of this being connected to a terrorist act. The person must avoid this possibility arising, and if they cannot, they should not collect or make the document.

It is therefore not necessary to prove fault in relation to the terrorist connection. If it exists in fact, the person is liable.

Proposed subsection 6.2(3) of the Criminal Code provides that the existence of absolute liability does not make any other defence unavailable. Criminal Code defences that may be relevant and that would prevent a person being liable notwithstanding the application of absolute liability include intervening conduct or event (section 10.1), duress (section 10.2), sudden or extraordinary emergency (section 10.3) and self-defence (section 10.4).

Proposed subsection 101.5(3) provides that a person commits an offence under subsection (1) even if the terrorist act does not occur.

Proposed subsection 101.5(4) provides that the offence in subsection (1) does not apply if the person proves that he or she was not reckless with respect to the circumstance in paragraph (1)(b).

Proposed subsection 101.5(5) applies Category D geographical jurisdiction, as set out in section 15.4 of the Criminal Code, to an offence against subsection 101.5(1). Category D jurisdiction is unrestricted. Its application to the offence of collecting or making documents likely to facilitate terrorist acts means that the offence will be committed whether or not the conduct or the result of the conduct constituting the offence occurs in Australia.

Proposed subsection 101.6(1) provides that a person commits an offence if the person does any act in preparation for, or planning, a terrorist act. Terrorist act is defined in proposed section 100.1. The maximum penalty is life imprisonment.

Proposed subsection 101.6(2) provides that a person commits an offence under subsection (1) even if the terrorist act does not occur.

Proposed subsection 101.6(3) applies Category D geographical jurisdiction, as set out in section 15.4 of the Criminal Code, to an offence against subsection 101.6(1). Category D jurisdiction is unrestricted. Its application to the offence of collecting or making documents likely to facilitate terrorist acts means that the offence will be committed whether or not the conduct or the result of the conduct constituting the offence occurs in Australia.

Division 102 - Proscribed organisations

Subdivision A - Definitions

Proposed section 102.1 - Definitions

Proposed section 102.1 contains definitions of terms used in the proposed Division 102 of the Criminal Code.

member of an organisation includes a person who holds informal membership, a person who has taken steps to become a member of the organisation and in the case of an organisation that is a body corporate, a director or officer of the body corporate. This definition is used in proposed paragraph 102.2(1)(b) to describe an affiliation with a group, which may then lead to a group being declared proscribed. This definition ensures that a person cannot evade liability by a technical argument about their lack of formal membership status.

proscribed organisation means an organisation in relation to which a declaration under section 102.2 is in force.

the Commonwealth is defined to include the Territories when used in a geographical sense. This term is used in the proscription power in

proposed paragraph 102.2(1)(d) and in the defence in proposed paragraph 102.4(3)(c). The effect of the definition is to ensure that threats to the integrity and security of an external Territory can be considered to be threats to the integrity and security of the Commonwealth and can therefore provide grounds for a proscription or nullify the existence of a defence to the proscribed organisations offence.

Subdivision B - Declarations of proscribed organisations

Subdivision B - Declarations of proscribed organisations

Proposed section 102.2 - Attorney-General may make declarations

Proposed section 102.2 - Attorney-General may make declarations

Proposed section 102.2 provides that the Attorney-General may make a declaration in writing that one or more organisations is a proscribed organisation. This declaration must effectively particularise the organisation to ensure that other organisations not intended to be proscribed are not covered by the declaration. Once an organisation has been proscribed, having specified links to that organisation is a serious offence under proposed section 102.4. The Attorney-General may declare an organisation proscribed if he/she is satisfied on reasonable grounds that one or more of proposed paragraphs 102.2(1)(a)-(d) apply in relation to the organisation.

If an organisation is a body corporate and the organisation is committing, or has committed an offence against this part, that is, the terrorism offences, then proposed paragraph 102.2(1)(a) would allow the Attorney-General to declare the organisation proscribed. This could occur regardless of whether the organisation has been charged or convicted with an offence.

If a member of the organisation is committing, or has committed an offence against this Part on behalf of the organisation, then proposed paragraph 102.2(1)(b) would allow the Attorney-General to declare the organisation proscribed. Similarly, this could occur regardless of whether the member has been charged or convicted with an offence.

Proposed paragraph 102.2(1)(c) allows the Attorney-General to declare an organisation proscribed if he/she is satisfied that the declaration is reasonably appropriate to give effect to a decision of the United Nations Security Council that the organisation is an international terrorist organisation.

Proposed paragraph 102.2(1)(d) allows the Attorney-General to declare an organisation proscribed if he/she is satisfied that the organisation is likely to endanger or has endangered the security or integrity of the Commonwealth or another country.

The lawfulness of the Attorney-General's decision making process and reasoning is subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977.

Proposed subsection 102.2(2) specifies that the Attorney-General must publish the declaration in the Gazette and a newspaper circulating in each State, in the Australian Capital Territory and in the Northern Territory. This wide circulation of such a declaration allows individuals the opportunity to discontinue their involvement with such an organisation at the earliest possible notice.

Proposed subsection 102.2(3) clarifies that such a declaration would come into force when it is published in the Gazette. The declaration then would stay in force until it is revoked or until a day, as specified in the declaration, as the day the declaration ceases to be in force.

Proposed subsection 102.2(4) allows the Attorney-General to delegate powers and functions under subsection (1) to a Minister. This is a limited delegation power, which reflects the importance of the power to declare an organisation as proscribed and the need for that decision to be made out at a senior level.

Proposed section 102.3 - Revocation of declarations

Proposed section 102.3 gives the Attorney-General power to revoke a declaration that an organisation is proscribed. Proposed subsection 102.3(1) obliges the Attorney-General to revoke a declaration that an organisation is proscribed if the Attorney-General is satisfied on reasonable grounds that none of the paragraphs in proposed subsection 102.2(1) apply in relation to the organisation. This could be done on the Attorney-General's own motion, or on application.

Proposed subsection 102.3(2) confers a discretionary power upon the Attorney-General to revoke a declaration that an organisation is proscribed.

Proposed subsection 102.3(3) obliges the Attorney-General to publish a revocation in the Commonwealth Gazette and a newspaper circulating in each State, in the Australian Capital Territory and the Northern Territory.

Proposed subsection 102.3(4) clarifies that a revocation made under this section comes into force when it is published in the Gazette.

Proposed subsection 102.3(5) allows the Attorney-General to delegate powers and functions under subsection (1) or (2) to a Minister. This is a limited

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delegation power, which reflects the importance of the power to declare an organisation as proscribed and the need for that decision to be made at a senior level.

Proposed section 102.4 specifies what kind of interaction with proscribed organisations constitutes an offence. Proposed subsection 102.4(1) provides that a person commits an offence if the person: (i) directs the activities of a proscribed organisation; (ii) directly or indirectly receives funds from or makes funds available to a proscribed organisation; (iii) is a member of a proscribed organisation; (iv) provides training to, or trains with, a proscribed organisation; or (v) assists a proscribed organisation.

In a prosecution of an offence against subsection 102.4(1) it is not necessary to prove that the defendant knew the organisation is a proscribed organisation. Proposed subsection 102.4(2) provides that strict liability applies to this section. This is based on the fact that it is not legitimate to be a member of or have links to an organisation of a kind that could be proscribed. Therefore, the onus is on the person to make out one of the defences in the proposed section. Fairness to the individual is safeguarded by the requirement that a proscription be published in the gazette and newspapers (proposed section 102.2) and by the defences of ceasing to being a member and having no knowledge of the existence of grounds for proscription (proposed subsections 102.3(3) and (4)).

Proposed subsection 102.4(3) creates a defence for a person prosecuted for an offence against subsection 102.4(1). The defendant must satisfy all three criteria. First, they must prove that they did not know nor were reckless that the organisation, or a member of the organisation, had committed or was committing an offence against this Part. Second, that they did not know nor were reckless that the UN Security Council had resolved that the organisation is an international terrorist organisation. Finally, that they did not know nor were reckless that the organisation was likely to endanger or had endangered the security or integrity of the Commonwealth or another country. The defendant bears a legal burden to prove this fact. The legal burden is outlined at section 13.4 of the Criminal Code. A legal burden of proof on the defendant must be discharged on the balance of probabilities (section 13.5).

Proposed subsection 102.4(4) creates a defence to the membership limb of the offence. The defence applies if the person proves that he or she took all reasonable steps to cease to be a member of the organisation as soon as practicable after the organisation was proscribed. As with proposed subsection 102.4(3) the defendant bears a legal burden to prove this.

Proposed subsection 102.4(5) would apply Category D geographical jurisdiction, as set out in section 15.4 of the Criminal Code, to the offences proposed in subsection 102.4(1).

Category D geographical jurisdiction will be satisfied whether or not the conduct constituting the alleged offence occurs in Australia; and whether or not a result of the conduct constituting the alleged offence occurs in Australia. This jurisdiction is appropriate due to the transnational nature of terrorist activities, and to ensure that a person cannot escape prosecution or punishment based on a jurisdictional loophole.

Item 5

Item 5 outlines the application of proposed section 102.2. Once the power to make declarations has commenced, the Attorney-General can use the power on the basis of events prior to commencement.

Crimes Act 1914

Item 6 - Subsection 4J(7)

This Item repeals subsection 4J(7) of the Crimes Act and substitutes it with two new paragraphs, proposed paragraphs 4J(7)(a) and 4J(7)(b). This change maintains the current rule that the treason offence is not to be dealt with summarily. The amendment is consequent upon the insertion of Item 2 of Schedule 1 into the Criminal Code.

Item 7 - Subsection 4J(7)

This is an alternate version of Item 6 to deal with the contingency of the Criminal Code Amendment (Espionage and Related Offences) Act 2002 being enacted before this Bill.

Item 8 - Section 24

This Item repeals the existing treason offence in section 24 of the Crimes Act consequent upon the insertion of proposed section 80.1 into the Criminal Code.

Item 9 - Subsection 24AC(1)

This Item removes the reference to section 24 in subsection 24AC(1) of the

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Crimes Act consequent upon the insertion of proposed subsection 80.1(3) into the Criminal Code, because the rules governing institution of proceedings in section 24AC will now be governed by Division 80.

Item 10 - Subparagraph 24F(2)(b)(ii)

This Item omits reference to paragraph 24(1)(d) of the Crimes Act and substitutes it with proposed subsection 80.1, in section 24F of the Crimes Act which provides that certain good faith acts are not unlawful. This is consequent on the insertion of Item 1 of schedule 1 in the Criminal Code.

Item 11 - After paragraph 24F(2)(b)

This item amends subsection 24F(2) of the Crimes Act so that the `good faith' exemption from criminal liability extends to the broadened treason offence.

Item 12 - Paragraph 24F(2)(c)

Item 13 - Paragraph 24F(2)(d)

These items clarify that references to certain sections in section 24F of the Crimes Act are to Crimes Act sections, consequential on the inclusion of references to the Criminal Code in section 24F.

Migration Act 1958

Item 14 - Subparagraph 203(1)(c)(i)

Item 15 - After subparagraph 203(1)(c)(i)

Item 16 - Subparagraph 203(1)(c)(ii)

Item 17 - Subparagraph 203(1)(c)(iia)

These items update a cross-reference to the treason offence in section 203 of the Migration Act 1958, to refer instead to the new treason offence in proposed section 80.1. Section 203 provides for deportation on non-citizens convicted of certain offences.

Item 18 - Saving of proclamations

This item ensures that a proclamation specifying an enemy of the Commonwealth under paragraph 24(1)(d) of the Crimes Act, which is in force when section 24 is repealed and replaced with proposed section 80.1 of the Criminal Code, can remain in force. The provision has been included in case such proclamation were made before the commencement of these provisions.

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Faheem Khalid Lodhi v Regina [2007] NSWCCA 360 (20 December 2007)

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Faheem Khalid Lodhi v Regina [2007] NSWCCA 360

FILE NUMBER(S):

2005/2993

HEARING DATE(S): 5 November 2007, 6 November 2007

JUDGMENT DATE: 20 December 2007

PARTIES:

Faheem Khalid Lodhi

Regina

JUDGMENT OF: Spigelman CJ Barr J Price J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2005/1094

LOWER COURT JUDICIAL OFFICER: Whealy J

COUNSEL:

App: P Boulten SC and P Lange

Crown: W Abraham QC and G Bellew SC

Attorney General: H Burmester QC and G Del Villar

SOLICITORS:

App: M Doughty

Crown: Commonwealth Director of Public Prosecutions

Attorney General: Australian Government Solicitor

CATCHWORDS:

Criminal law – collecting documents connected with preparation for a terrorist act – doing an act in preparation for a terrorist act – possessing a thing connected with preparation for a terrorist act

Admissibility of evidence of identification by photograph of a person not the accused – fairness of identification procedure – whether risk of unfair prejudice outweighed probative value

Evidence adduced on appeal – whether fresh – whether cogent

Collecting documents connected with preparation for a terrorist act – doing an act in preparation for a terrorist act – possessing a thing connected with preparation for a terrorist act – whether Crown must prove that at the time of the collection, the action or the possession the accused has determined when how where or by whom the terrorist act might be carried out

Terrorism – culpability for preparatory acts short of attempt

Sentencing - acts preparatory to terrorist acts - protection of the community

The appellant was charged with collecting certain documents which were connected with preparation for a terrorist act, knowing that connection, with doing a certain act in preparation for a terrorist act and with possessing a certain thing connected with preparation for a terrorist act, knowing that connection. The documents in the first charge were maps of the Australian electricity supply grid. The act in the second was seeking information from a chemical supply company about the availability of materials capable of being used to make explosives or incendiary devices. The thing in the third charge was a document setting out the ingredients for and the method of making poisons, explosives, detonators, incendiary devices, etcetera. The charges were laid under ss101.5, 101.6 and 101.4 respectively of the Commonwealth Criminal Code. The maximum prescribed sentences were imprisonment for ten years, for life and for ten years respectively. The jury found the appellant guilty of the three offences but not guilty of a fourth. The appellant was sentenced to imprisonment to concurrent terms totalling twenty years. A non-parole period of fifteen years was set.

Early in the trial the appellant appealed by leave to this Court under s5F Criminal Appeal Act against the refusal of the trial judge to quash the indictment for duplicity and want of particularity: see [2006] NSWCCA 121. The first ground of appeal raised again matters dealt with in that judgment and the Court declined to deal with them.

The second ground of appeal asserted that s31(8) National Security Information (Criminal and Civil Proceedings) Act 2004 (Commonwealth) (the NSI Act) was invalid because it breached Ch III Australian Constitution by usurping the judicial power of the Commonwealth which was vested solely in the judiciary. The NSI Act is concerned with protecting national security by empowering judges to make non-disclosure orders. The legislation applies if the prosecutor gives the Attorney General written notice that the Act applies. Then the prosecutor and the defence are required to notify the Attorney General of certain matters relating to the disclosure in the proceedings of information that relates to national security or the disclosure of which may affect national security. Criminal proceedings for these purposes include production, inspection and disclosure of documents. If the Attorney General considers that the disclosure of information is likely to prejudice national security the Attorney General may issue a certificate describing the information and prohibiting disclosure expect in permitted circumstances. If the Attorney General so certifies, the Court must hold a hearing to decide whether to make an order about disclosure of the information. By s31 the Court may order that a person may in permitted circumstances or must not disclose information or may or must not call a particular witness. By subs (7) the Court in deciding whether to make an order must consider whether, having regard to the Attorney General’s certificate, there would be a risk of prejudice to national security if the information were disclosed or the witness called and whether the order would have a substantial adverse effect on the defendant’s right to a fair trial, as well as any other relevant matter. By subs (8) the Court is to give “greatest” weight to the assessed risk of prejudice to national security.

The Attorney General issued a certificate and the other steps followed. The trial judge held a hearing and made orders concerning documents produced to the Court.

It was submitted on appeal that by requiring the Court to give “greatest” weight to the risk of prejudice to national security the Parliament had usurped the judicial function by directing the judge hearing the case how the case must effectively be decided. The Court decided that the use of the word ‘”greatest” as possibly applicable to the weighing of more than two circumstances meant no more than that greater weight must be given to the risk of prejudice to national security than to any other of the circumstances weighed. If only two circumstances were weighed, it would be construed to mean “greater”. The effect of the subsection was not to usurp judicial power by requiring that the balance must always come down in favour of the risk of prejudice to national security. Subs (8) was not constitutionally invalid.

The third and fourth grounds of appeal asserted that evidence of an association between the appellant and a man called Willie Brigitte should have been excluded because it had no probative value. It was no more than evidence of association. It was held that the association and communications between the appellant and Brigitte amounted to a circumstance capable of explaining why the appellant acted as he did. The Court rejected an alternative submission that the risk of unfair prejudice outweighed the probative value of the evidence. It was submitted that evidence of identification by photograph of Brigitte ought to have been rejected because the manner of identification was prone to produce error. The submission was rejected.

The fifth ground of appeal relied on evidence given after the trial by the witness who had identified Brigitte by photograph. An answer he gave was said to be capable of throwing doubt on the integrity of the process of identification. The Court considered that the evidence lacked the necessary cogency and decided not to receive it.

The sixth ground of appeal asserted that the trial judge had erred in refusing to direct verdicts of acquittal because the Crown could not prove that when he did the act forming the basis of each of the charges the appellant had determined when, how, where or by whom the relevant terrorist act might be carried out. The Court observed that the acts charged were preparatory only and that proof of the matters raised was not necessary for conviction.

The Court dismissed the appeal against conviction.

In granting leave to appeal against sentence and dismissing the appeal the Court held that the trial judge’s assessment of the objective seriousness of the offences was not flawed, that his Honour had not failed to give sufficient weight to the conditions in which the appellant would be held in custody, that his Honour did not err in not reducing the head sentence by reference to s19AG Crimes Act 1914 (Commonwealth) and that the sentence was not manifestly excessive. The Court emphasised the need, in sentencing for culpable acts preparatory to acts of terrorism, for courts to impose sentences which protect the community.

Judgment

1 SPIGELMAN CJ: I have read the judgment of Barr J in draft. His Honour deals with the facts and with the submissions relating to the grounds of appeal other than Ground 2. I agree with his Honour’s reasons for rejecting each ground of appeal with which his Honour deals.

Ground 2

The second ground of appeal is that:

“His Honour erred in applying an unconstitutional test in determining whether information, the disclosure of which was sought by the Appellant, was subject to public interest immunity.”

2 This ground of appeal raises the constitutional validity of provisions of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (here after the “NSI Act”) which empower the court to order a person not to disclose national security information as defined in the Act.

3 This issue arose as a result of a subpoena to produce documents issued on behalf of the appellant. A number of documents were the subject of a ruling by Whealy J that neither party should disclose documents or should do so only in redacted form. His Honour decided the matter in accordance with the NSI Act.

4 The non-disclosure orders affected most of the documents under consideration. His Honour did, however, in a considered judgment, order that certain material be disclosed to the appellant.

5 Save on the basis of constitutional invalidity, there is no appeal from his Honour’s non-disclosure orders. Furthermore, the aspect of the NSI Act which arises on this ground of appeal concerns the manner in which the Act regulates access to documents sought on subpoena. This ground focuses attention on s 31(8) of the NSI Act.

The Legislative Scheme

6 The application of the Act is triggered by a notice in writing by the prosecutor to the accused, and to the Court, that the Act applies to the proceedings. (s 6(1))

7 The words “national security” are defined in s 8 to s 11 in terms which do not arise on the submissions in the present proceedings.

8 Section 24(1)(a)-(c) requires a prosecutor or the defendant to notify the Attorney General of certain matters, which do not need to be set out in full. It is sufficient to note, for present purposes, that these provisions refer to the disclosure in a federal criminal proceeding of information “that relates to national security” or “may affect national security”.

9 It is pertinent, for present purposes, to note that the “production, inspection or disclosure of ... documents” is identified as “part of a criminal proceeding”. (s 13(2)(c))

10 The first directly relevant step for present purposes was the issue of a certificate by the Attorney General pursuant to s 26(2)(b). The relevant provisions of s 26 are:

“26(1) This section applies if:

(a) any of the following happens:

(i) the Attorney-General is notified under section 24 that the prosecutor or defendant knows or believes that the prosecutor or defendant or another person will disclose information in a federal criminal proceeding;

(ii) the Attorney-General for any reason expects that any of the circumstances mentioned in paragraphs 24(1)(a) to (c) will arise under which the prosecutor or defendant or another person will disclose information in a federal criminal proceeding;

...

(c) the Attorney-General considers that the disclosure is likely to prejudice national security.

(2) If the information would be disclosed in a document (the source document), the Attorney-General may give each potential discloser (see subsection (8)) of the information in the proceeding:

(a) any of the following:

(i) a copy of the document with the information deleted;

(ii) a copy of the document with the information deleted and a summary of the information attached to the document;

(iii) a copy of the document with the information deleted and a statement of facts that the information would, or would be likely to, prove attached to the document;

together with a certificate that describes the information and states that the potential discloser must not, except in permitted circumstances, disclose the information (whether in the proceeding or otherwise), but may disclose the copy, or the copy and the statement or summary; or

(b) a certificate that describes the information and states that the potential discloser must not, except in permitted circumstances, disclose the information (whether in the proceeding or otherwise).

...”

(Section 26(8) identifies, relevantly, the prosecutor and defendant as a “potential discloser”.)

11 In the present case the Attorney General issued certificates prohibiting disclosure of information in the documents to which the appellant sought access.

12 The present proceedings are federal criminal proceedings as defined in s 14(a) of the Act, being proceedings for an offence against the law of the Commonwealth. In such a case s 27 provides:

“27(1) If a proceeding is covered by paragraph 14(a) (about a proceeding involving a trial) and, under section 26, the Attorney-General gives a potential discloser a certificate at any time during a part of the proceeding that takes place before the trial begins, the certificate is conclusive evidence, during that part of the proceeding and any later part that takes place before the hearing mentioned in paragraph (3)(a) begins, that disclosure of the information in the proceeding is likely to prejudice national security.

...

(3) If a proceeding is covered by paragraph 14(a) (about a proceeding involving a trial) and, under section 26, the Attorney-General gives a potential discloser a certificate at any time during the proceeding, the court must:

(a) in any case where the certificate is given to the court before the trial begins – before the trial begins, hold a hearing to decide whether to make an order under section 31 in relation to the disclosure of the information; or

(b) if subparagraph 26(1)(a)(i) or (iii) applies and the certificate is given to the court after the trial begins – continue the adjournment of the proceeding mentioned in subsection 24(4) or 25(7) for the purpose of holding a hearing to decide whether to make an order under section 31 in relation to the disclosure of the information; or

(c) if subparagraph 26(1)(a)(ii) applies and the certificate is given to the court after the trial begins – adjourn the proceeding for the purpose of holding a hearing to decide whether to make an order under section 31 in relation to the disclosure of the information.

(4) If the Attorney-General revokes the certificate at any time while the proceeding is adjourned or the hearing is being held, the court must end the adjournment or the hearing.

(5) The closed hearing requirements apply to the hearing.”

13 Detailed provision is made for the conduct of a closed hearing by s 29, which does not need to be fully set out.

14 Section 31 empowers the Court to make orders. Subsequent sections make provisions for steps to be taken after the making of orders, which were not relied upon in this appeal. The critical provision is s 31(8), which must be understood in the context of s 31:

“31(1) After holding a hearing required under subsection 27(3) in relation to the disclosure of information in a federal criminal proceeding, the court must make an order under one of subsections (2), (4) and (5) of this section.

(2) If the information is in the form of a document, the court may order under this subsection that:

(a) any person to whom the certificate mentioned in subsection 26(2) or (3) was given in accordance with that subsection; and

(b) any person to whom the contents of the certificate have been disclosed for the purposes of the hearing; and

(c) any other specified person;

must not, except in permitted circumstances, disclose the information (whether in the proceeding or otherwise), but may, subject to subsection (3), disclose (which disclosure may or may not be the same as was permitted in the Attorney-General’s certificate) in the proceeding:

(d) a copy of the document with the information deleted; or

(e) a copy of the document with the information deleted and a summary of the information, as set out in the order, attached to the document; or

(f) a copy of the document with the information deleted and a statement of facts, as set out in the order, that the information would, or would be likely to, prove attached to the document.

(3) If the court makes an order under subsection (2), the copy of the document is admissible in evidence if, apart from the order, it is admissible. However if:

(a) a person who is the subject of the order seeks to adduce evidence of the contents of the document; and

(b) the contents of the document are admissible in evidence in the proceeding;

the person may adduce evidence of the contents of the document by tendering the copy, or the copy and the summary or statement, mentioned in that subsection.

(4) The court may, regardless of the form of the information, order under this subsection that:

(a) any person to whom the certificate mentioned in subsection 26(2) or (3) was given in accordance with that subsection; and

(b) any person to whom the contents of the certificate have been disclosed for the purposes of the hearing; and

(c) any other specified person;

must not, except in permitted circumstances, disclose the information (whether in the proceeding or otherwise).

(5) The court may, regardless of the form of the information, order under this subsection that any person may disclose the information in the proceeding. However, the information is only admissible in evidence in the proceeding if, apart from the order, it is admissible.

(6) After holding a hearing required under subsection 28(5), the court must order that:

(a) the prosecutor or defendant must not call the person as a witness in the federal criminal proceeding; or

(b) the prosecutor or defendant may call the person as a witness in the federal criminal proceeding.

(7) The Court must, in deciding what order to make under this section, consider the following matters:

(a) whether, having regard to the Attorney-General’s certificate, there would be a risk of prejudice to national security if:

(i) where the certificate was given under subsection 26(2) or (3) – the information were disclosed in contravention of the certificate; or

(ii) where the certificate was given under subsection 28(2) – the witness were called;

(b) whether any such order would have a substantial adverse effect on the defendant’s right to receive a fair hearing, including in particular on the conduct of his or her defence;

(c) any other matter the court considers relevant.

(8) In making its decision, the Court must give greatest weight to the matter mentioned in paragraph (7)(a).”

15 The phrase “substantial adverse effect”, which appears in s 31(7)(b), is defined in s 7 to mean “an effect that is adverse and not insubstantial, insignificant or trivial”.

16 Although the phrase “risk of prejudice to national security” is not defined, a cognate phrase is defined in s 17:

“17 A disclosure of national security information is likely to prejudice national security if there is a real, and not merely a remote, possibility that the disclosure will prejudice national security.”

17 It is also pertinent to note the express objects provision, s 3:

“3(1) The object of this Act is to prevent the disclosure of information in federal criminal proceedings and civil proceedings where the disclosure is likely to prejudice national security, except to the extent that preventing the disclosure would seriously interfere with the administration of justice.

(2) In exercising powers or performing functions under this Act, a court must have regard to the object of this Act.”

18 Finally s 19 provides:

“19(1) The power of a court to control the conduct of a federal criminal proceeding, in particular with respect to abuse of process, is not affected by this Act, except so far as this Act expressly or impliedly provides otherwise.

(2) An order under section 31 does not prevent the court from later ordering that the federal criminal proceeding be stayed on a ground involving the same matter, including that an order made under section 31 would have a substantial adverse effect on a defendant’s right to receive a fair hearing.

...”

The Interpretation of s 31(8)

19 Mr P Boulten SC, who appeared for the appellant, focused his constitutional submissions on s 31(8). The starting point for any analysis must be the interpretation of that provision.

20 The difficulty that arises is the use of the superlative, “greatest”. If the sub section had referred to “great weight” the issue now agitated before the Court would probably not have arisen at all.

21 In Mr Boulten’s submission, this provision constitutes an impermissible usurpation of judicial power because, as a matter of practical reality, the executive certificate, together with the usual supporting evidence, would determine whether or not disclosure is made. A trial judge simply would not have, Mr Boulten submitted, the capacity to formulate an independent judgment about the degree of threat to national security and, save in the case of fanciful claims, would not, as a practical matter, be able to act in any other manner than to enforce the certificate.

22 Accordingly, although in form the legislation purports to confer a discretionary judgment to be exercised by the trial judge, in substance the certificate together with the supporting evidence will prove to be determinative, save in the case of fanciful claims of a risk to national security.

23 Mr Boulten also submitted that, in such a context the public may perceive the Courts to be acting in accordance with the wishes of the Executive branch of Government rather than pursuant to an unimpeded exercise of judicial power.

24 With regard to Mr Boulten’s submission that the legislative scheme is such that in substance, albeit not in form, a certificate and supporting evidence will prove determinative, s 31(8) is not distinctive in that regard. Such difficulties often arise in public interest immunity claims, particularly where issues of national security are involved.

25 Mr H Burmester QC, who appeared for the Attorney General, relied on two provisions which, he submitted, minimise any interference with the administration of justice associated with the tilting of the balance in the formulation of the judgment for which s 31(8) calls and the exercise of the discretion to make an order under s 31(2) or s 31(4).

26 The first provision upon which Mr Burmester relied is s 19 which acknowledges the ability of the Court to stay proceedings on the grounds of abuse of process. However, as Mr Boulten also submitted, this ultimate power does not allow for the situation in which an adverse impact occurs on the fairness of the trial, but the relevant imperfection is not such as to justify a stay.

27 Mr Boulten’s submission should be accepted in this respect. Although the Court’s power to order a stay of proceedings to prevent abuse of its process is acknowledged, it is a power that is rarely exercised, particularly where criminal proceedings are instituted with respect to charges of a serious character, as will often be the case where issues of national security arise. This ultimate fallback power is not entitled to significant consideration in determining whether or not this legislative scheme impermissibly intrudes upon the exercise of judicial power.

28 The second provision upon which Mr Burmester relied is the Objects clause, s 3, in particular the requirement in s 3(2) that the Court must have regard to the object when exercising powers or performing functions. Section 3(1) is fully set out above. It states that the object of the Act is to protect national security, but to do so only to a limited extent. The limitation arises by reason of the words: “except to the extent that preventing the disclosure would seriously interfere with the administration of justice.”

29 Accordingly, when exercising the function of giving “greatest weight” to the “risk of prejudice to national security” a court must “have regard” to the object of the Act to avert such ‘prejudice’, but not absolutely. The avoidance of ‘prejudice’ is qualified wherever non-disclosure of information “would seriously interfere with the administration of justice.”

31 There is a tension between the objects clause and s 31(7) and (8). The reference in s 3(1) to “seriously interfere with the administration of justice” is capable of being regarded as coincident with the formulation “a substantial adverse effect on the defendant’s right to receive a fair hearing”. In my opinion, where there is a “substantial adverse effect on the right to receive a fair hearing,” then it would be concluded that there had been a ‘serious interference with the administration of justice’. It is a difficult task to avoid prejudice to national security, whilst having regard to the proposition that that objective should not prevail where disclosure of information would seriously interfere with the administration of justice. Nevertheless, that is the task which Parliament has set for the Court. As I will indicate below, balancing incommensurable interests is a task to which courts are accustomed.

32 Mr Burmester also submitted that the word “greatest” is used for grammatical reasons. (Accepting the reasoning of Whealy J in R v Lodhi [2006] NSWSC 371; (2006) 163 A Crim R 448 at 469 [108]). Although the primary focus in s 31(7) is on the balancing of national security interests, to which par (a), refers and the right to receive a fair trial, to which (b) refers, par (c) permits the Court to take into account any other matter that it considers relevant.

33 As a matter of grammar this submission is correct. If only (a) and (b) had been present in subs (7) then the formulation in subs (8) would have used the word “greater”, rather than “greatest”. In a case, such as the present, where in substance the relevant balancing exercise is between pars (a) and (b), that is how subs (8) should be construed.

34 Mr Burmester, on the basis of the interpretation he advocated, submitted that the degree of interference with the exercise of the judicial power is lower than that submitted by the appellant. In particular he submitted that, in circumstances where there was a substantial adverse effect on the right to receive a fair trial, but the risk of prejudice to national security was “low”, then the trial judge in giving “greatest weight” or “greater weight” to the latter would still order disclosure.

35 Mr Burmester drew the Court’s attention to the fact that, with respect to particular documents, that is precisely what Whealy J did in the present case. His Honour did order disclosure of certain documents after making the judgment that the prejudice to national security was low.

36 The effect of s 31(8) was, in my opinion, accurately set out by Whealy J in Lodhi supra at [108]:

“[108] The mere fact that the legislation states that more weight, that is the greater weight, is to be given to one factor over another does not mean that the other factor is to be disregarded. The use of the expression ‘greatest weight’ appears to be grammatically correct since the legislation is contemplating three (or more) considerations. Nor do I consider that the discretion is an exercise that, as was argued, will almost inevitably lead to one result namely, prevention of disclosure. Mr Boulten SC described it as ‘filling in the dots’. I cannot agree with this description. Read fairly, it seems to me that the legislation does no more than to give the Court guidance as to the comparative weight it is to give one factor when considering it alongside a number of others. Yet the discretion remains intact and, particularly for the reasons I have outlined, it seems to me that there is no warrant for supposing other than that, in a proper case, the Court will order disclosure or a form of disclosure other than that preferred by the Attorney-General. The legislation does not intrude upon the customary vigilance of the trial judge in a criminal trial. One of the court’s tasks is to ensure that the accused is not dealt with unfairly. This has extended traditionally into the area of public interest immunity claims. I see no reason why the same degree of vigilance, perhaps even at a higher level, would not apply to the Court’s scrutiny of the Attorney’s certificate in a s 31 hearing.”

37 Mr Burmester’s submission on the grammatical requirement to use the word “greatest”, based on Whealy J’s approach, provides an important corrective to the connotation that the use of the superlative would otherwise invoke. Relevantly, s 31(8) should be applied as if it said:

“In making its decision, the Court must give greater weight to the matter mentioned in paragraph (7)(a) than to the matter mentioned in paragraph (7)(b).”

38 This interpretation is of considerable significance for the determination of the constitutional issue before the Court. It is not only where, as Whealy J held with respect to particular documents in the present case, “the risk of prejudice to national security” is assessed to be “low” that subs (7)(b) may outweigh subs (7)(a), notwithstanding subs (8). There may be a significant risk of such prejudice but, even giving that consideration “greater weight”, the extent of “adverse effect on the defendant’s right to receive a fair hearing” may be such that disclosure is required.

39 On this interpretation of s 31(8), no constitutional issue arises. In my opinion, however, even if the superlative was given a substantive, rather that a grammatical application, the subsection would still be valid.

The Balancing Exercise

40 Section 31(7) and (8) require the Court to consider disparate matters, relevantly risk of prejudice to national security and the effect on the defendant’s right to receive a fair hearing, giving “greatest weight” to the former. This involves a broad evaluative judgment of a character that is often referred to in terms of the metaphor of “balancing”. (See generally Frank M Coffin “Judicial Balancing: the Protean Scales of Justice” (1980) 63 New York University Law Review 16.) Such balancing involves comparison between conflicting interests that are, in their essence, incommensurable. As Justice Scalia put it, this is like asking “whether a particular line is longer than a particular rock is heavy”. (Bendix Autolite Corp v Mid Wesco Enterprises Inc 486 US 888 (1988) at 897)

41 Although the ultimate task to be performed is one of balancing, s 31(8) does tilt the balance or put a thumb on the scales. However, this is only one of many possible ways in which common law principles or legislative provisions can guide the task of balancing conflicting interests. The existence of such guidance, even if it can be said to tilt the balance in favour of a particular decision, does not fundamentally alter the task. For purposes of assessing the constitutional propositions upon which the appellant relied, it is important to recognise that tilting the balance by some form of guidance is perfectly consistent with the traditional judicial decision making process.

42 That this is the case is perhaps best illustrated by the fact that common law principles developed by the courts may also involve a tilting of the balance. For example in Hinch v Attorney General of Victoria [1987] HCA 56; (1987) 164 CLR 15, the High Court considered the balancing exercise required by the principle expressed in Ex Parte Bread Manufacturers Ltd; v Re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242 at 249-250. The Bread Manufacturers defence requires the Court in contempt proceedings to balance competing public interests between the administration of justice, on the one hand, and freedom of expression on the other.

43 In this context Wilson J, after reviewing the relevant case law concluded in Hinch at 41-42:

“But it is important to emphasise that in undertaking a balancing exercise the court does not start with the scales evenly balanced. The law has already tilted the scales. In the interests of the due administration of justice it will curb freedom of speech, but only to the extent that is necessary to prevent a real and substantial prejudice to the administration of justice”. [Emphasis added]

44 His Honour also said at 43:

“Of course, there are some respects in which the law has already decreed a freedom to the media to publish prejudicial material e.g. in the freedom to publish fair reports of preliminary court proceedings, including bail applications and committal proceedings. But this freedom is strictly circumscribed, reflecting the strength of the law’s concern to protect the due administration of justice from unjustifiable interference. Generally speaking, it is for a court, in determining whether impugned conduct should be condemned and punished as a contempt of court, to engage in a balancing exercise between competing public interests. Nevertheless, the law provides guidance of the kind I have indicated in determining the relative weight to be accorded to the factors which in a particular case may require consideration.” [Emphasis added]

Note the express adoption of the observations of Wilson J with respect to the tilting of the scales in Attorney General of New South Wales v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368 at 384).

45 This tilting or “thumb on the scales” approach to a balancing exercise does not involve the formulation of a rule which determines the outcome in the process. Although the provision of guidance, or an indication of weight, will affect the balancing exercise, it does not change the nature of the exercise. (See also Attorney General of New South Wales v X [2000] NSWCA 199; (2000) 49 NSWLR 653 especially at [65]-[66], [71], [81]-[84].)

46 It may be that the interposition of a rule or standard applicable before the process of balancing is undertaken will lead to the conclusion that the process does not involve a balancing exercise at all. However, that is not the case where the common law principle or statute identifies one interest as more important than another in a particular context.

47 To give more weight to one matter over another is a task that is often performed in the course of balancing conflicting interests. (See V Luizzi “Balancing of interests in Courts” (1980) 20 Jurimetrics Journal 373 especially at 387-390.) I also agree with the author’s observation at 373 that:

“Although we may all recognise the difficulties of balancing the conflicting interests of parties and citizens, we all share a common intuitive grasp of, or at least are in agreement about, what the metaphor of balancing interests entails.”

48 The formulation by judges of guidance for the conduct of a balancing exercise between incommensurable interests is a process for which there is some analogy to the legislative task. As Benjamin Cardozo said of a judge engaged in such a process:

“If you ask how he is to know when one interest outweighs another, I can only answer that he must get his knowledge just as the legislator gets it, from experience and study and reflection; in brief, from life itself. Here, indeed, is the point of contact between the legislator’s work and his. The choice of methods, the appraisement of values, must in the end be guided by like considerations for the one as for the other. Each indeed is legislating within the limits of his competence. No doubt the limits for the judge are narrower. He legislates only between gaps. He fills the open spaces in the law.” (The Nature of the Judicial Process, (1921) Yale University Press New Haven and London at 113).

The analogy between this kind of judicial task and the legislative task is pertinent to the issue of constitutional validity.

Legislative Usurpation

49 The separation of powers issue which arises on the submissions in the present case is whether the NSI Act, especially by force of s 31(8), does “usurp or infringe” (Liyanage v The Queen [1965] UKPC 1; [1967] 1 AC 259 at 289), the judicial power of the Commonwealth which Ch III of the Constitution vests exclusively in the judiciary, including in State courts exercising federal jurisdiction.

51 Alternatively to the language of “usurpation” or interference, Liyanage has been referred to as authority for a test of whether the legislature “attempted to circumscribe the judicial process.” (See Australian Building Construction Employees’ supra at 96, not quoted in Bachrach supra). This terminology was adopted by Mason J in The Queen v Humby; ex parte Rooney [1973] HCA 63; (1973) 129 CLR 231. His Honour referred to Liyanage and said at 250:

“The legislation in question was of an unusual character, it constituted a marked interference with the judicial process and circumscribed the judicial function and the discretions incidental to it.”

52 Can it be said that s 31(8) impermissibly usurps, interferes with or circumscribes a discretion incidental to the exercise of the judicial power of the Commonwealth?

53 Perhaps the most frequently cited test for legislative usurpation is “a law which requires or authorises the courts ... to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power”. (Chu Kheng Lim v Minister of Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 at 27 per Brennan, Deane and Gaudron JJ) Their Honours concluded that it would be an “impermissible intrusion into the judicial power ... for the Parliament to purport to direct the courts as to the manner and outcome of the exercise of their jurisdiction”. (Chu Kheng Lim supra at 37.)

54 Can it be said that s 31(8) impermissibly requires the exercise of judicial power in a manner inconsistent with the essential character of a court, or that it purports to direct the courts as to the manner of the exercise of their jurisdiction?

“... [I]t may be accepted for present purposes that legislation which requires a court exercising federal jurisdiction to depart to a significant degree from the methods and standards which have characterised judicial activities in the past may be repugnant to Ch III.”

56 Can it be said that s 31(8) departs to a significant degree from “the methods and standards” of traditional judicial activity?

58 The case which is closest to the issue raised on this appeal is Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173, where the High Court upheld the constitutional validity of legislation permitting the admissibility of evidence obtained in circumstances where law enforcement officers had committed a criminal offence in a “controlled operation”. The legislation limited the exercise of the Court’s discretion to exclude such unlawfully obtained evidence, a discretion affirmed by the High Court in Ridgeway v The Queen [1994] HCA 33; (1995) 184 CLR 19.

59 The limitation enacted as s 15X of the Crimes Act 1914 (Cth), and upheld in Nicholas, was directed, in terms, to the admissibility of evidence. It relevantly provided: “In determining ... whether evidence that narcotic goods were imported ... should be admitted, the fact that a law enforcement officer committed an offence ... is to be disregarded ...” if certain conditions are met. Section 15X was of significance for controlled operations which occurred before commencement of the Act, other provisions of which had the effect of decriminalising the involvement of a law enforcement officer in a later controlled operation.

60 Section 15X did not abolish the relevant discretion. It removed an element, albeit a particularly pertinent, indeed critical, element, from the process of exercising the discretion.

61 Four of the majority judgments in Nicholas (Brennan CJ, Toohey, Gummow and Hayne JJ) emphasised that s 15X limited the discretion of the Court to exclude evidence and that the common law of evidence had often been changed by legislation. (See at [23]-[24], [25]-[26], [53], [55], [151]. [161]-[162], [235]-[236], [238].)

62 The obtaining of evidence is the principal legitimate forensic purpose of a subpoena to produce documents, and the approach applicable to the admissibility of evidence offers a close analogy to the present case. Like s 15X considered in Nicholas, s 31(8) of the NSI Act, is a rule which limits the discretion of the court, relevantly, with respect to access to documents as distinct from admissibility. The reasoning of the majority judgments in Nicholas is, in my opinion, applicable. Disclosure of documents involves a matter of procedure, which has also frequently been amended by legislation.

63 This conclusion is reinforced by the emphasis in the four majority judgments in Nicholas to the effect that the discretion, upon which the legislation impinged, involved the balancing of conflicting public policy considerations. Their Honours accepted that the alteration of the way the balance should be struck in that case did not constitute an impermissible usurpation of the judicial power ([35]-[36], [55], [159]-[160], [164], [234], [244]).

64 As Gummow J put it at [160]:

“The legislature has now ... struck a different balance between these competing interests.”

65 And as Hayne J said at [238]:

“In the case of this particular discretion, the exercise of which depends upon the balancing of competing considerations, I see no intrusions on the judicial power by the legislature saying that in some kinds of case, one consideration (that of preserving the reputation of the courts by their not being seen to condone law breaking) is to be put to one side in favour of the consideration that persons committing a particular kind of crime should be convicted and punished.”

66 A similar approach is, in my opinion applicable to s 31(8) of the NSI Act. The legislature has “struck a different balance”. It has, to some degree, “put to one side” the public and private interest in obtaining all potentially relevant information, “in favour of” the public interest in national security. This, in my opinion, is constitutionally permissible.

67 I have discussed the process of balancing competing interests above. As I have noted, in certain areas the common law has tilted the balance. Doing so does not alter the essential quality of the task being performed. If the legislature tilts the balance in some way, it cannot be said that doing so is “inconsistent with the essential character of a court or with the nature of judicial power” (Chu Kheng Lim); nor that it interferes with the judicial process itself or “circumscribes a discretion incidental to the judicial process” (Australian Building Construction Employees’); nor that it constitutes, a “direction to the courts as to the manner of the exercises of jurisdiction” (Chu Kheng Lim); nor that it requires the court “to depart to a significant degree from the methods and standards which have characterised judicial activity” (Thomas v Mowbray).

68 Claims for public interest immunity require the balancing of the public interest in non-disclosure against the public interest in the administration of justice, reflecting the cognate private interest to ensure disclosure of all facts which may directly or indirectly be relevant to a trial. The statutory scheme of the NSI Act is analogous to such a claim.

69 It is characteristic of all the forms of privilege which the common law has long recognised, that potentially relevant facts will be withheld from a litigant. A successful claim of public interest immunity is one example of such an effect. The legislative tilting of the balance, accepted in Nicholas is, in this respect, similar to the tilting of the balance by s 31(8) of the NSI Act.

70 The final aspect of the majority judgments in Nicholas, to which I wish to draw attention are the references to the protection of “the integrity of the judicial process.” (See at [37], [167], [234], [286], [239], [240].) In particular, Gummow J said at [167]:

“... [V]iews of public policy may differ, as the judgments in the divided Court in Ridgeway demonstrate. For the legislature to prefer one such view to another is not, of itself, to undermine, in a constitutionally impermissible manner, the integrity of the judicial process in the exercise of the judicial power of the Commonwealth.”

71 This emphasis on integrity of the judicial process is similar to the emphasis now given to institutional integrity with respect to the cognate principle applicable to powers or functions that are incompatible with the exercise of judicial power. (See Fardon v Attorney General of Queensland [2004] HCA 46; (2004) 223 CLR 575 at [15], [23], [37], [101], [219]). Indeed Gummow J described “institutional integrity” as the “touchstone” of this principle. (See also Powercoal Pty Ltd v Industrial Relations Commission of New South Wales [2005] NSWCA 345; (2005) 64 NSWLR 406 at [42]- [45]).

72 The modification of judicial procedures by legislation should not be characterised as a legislative usurpation of judicial power, unless it affects the integrity of the judicial process. As noted above, in certain contexts the common law tilts a balancing process without effect on the integrity of the process. Legislation can also do so, without necessarily having such an effect.

73 This focus on whether the integrity of the process has been compromised confirms the conclusion to which I have come above. Tilting the balance with respect to the formulation of a broad evaluative judgment, upon which reasonable minds may differ, does not impinge upon the integrity of the process by which the judgment is formed. It may affect the outcome of the process but not in such a way as to affect its integrity.

Right to a Fair Trial

74 The appellant, alternatively, relied upon what he described as the constitutional right to a fair trial. The authority upon which the appellant relied in this regard was the judgment of Deane J in Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 at 326. This passage has not been authoritatively adopted. The High Court has not recognised a right to a fair trial as a free standing right.

75 It is unnecessary to pursue this alternative argument in detail. In my opinion, even if there were such a constitutional right, s 31(8) would not constitute an infringement of it, for the same reasons I have given above for concluding that there was no legislative usurpation of the judicial process.

76 I repeat, and emphasise, that all claims for privilege, which the common law has long recognised, necessarily involve the withholding of potentially relevant evidence, even from defendants in a criminal trial. So, in Carter v Managing Partner, Northmore Hale Davy & Leake [1995] HCA 33; (1995) 183 CLR 121, a claim for legal professional privilege was upheld even where documents could establish the innocence of an accused or materially assist his defence.

77 A successful claim for public interest immunity does not contradict such right to a fair trial as may exist under the Constitution. The legislative tilting of the balancing process by s 31(8) of that Act, in my opinion, does not constitute so significant a change as to have such an effect.

The Sentence Appeal

78 The facts and submissions relevant to the sentence appeal are set out by Price J whose judgment I have read in draft. Subject to the following observations I agree with his Honour’s judgment.

79 The sentence imposed is a substantial one, particularly in view of the fact that there was no actual injury to persons or property. Nevertheless, as Price J emphasises, the provisions creating the offence are directed to preparatory acts and the seriousness with which Parliament regards such acts is manifest in the maximum penalty. By the extended range of conduct which is subject to criminal sanction, going well beyond conduct hitherto generally regarded as criminal, and by the maximum penalties provided, the Parliament has indicated that, in contemporary circumstances, the threat of terrorist activity, requires condign punishment.

80 The statutory guidepost for the exercise of the sentencing discretion is provided by s 16A(1) of the Crimes Act 1914 (Cth):

“16A(1) In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.”

81 The very generality of the language – “a severity appropriate in all the circumstances of the offence” – indicates the breadth of the discretion conferred upon the sentencing judge. In this formulation the Parliament has indicated that the sentencing principles developed at common law, rather than the various provisions in State legislation, should apply to sentencing for Commonwealth offences. (See Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [15].)

82 The Australian common law of sentencing is based on the principle of proportionality which requires that a sentence should not exceed what is proportionate to the gravity of the crime. The basic authority in this regard remains Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465. The references in the joint judgment in that case to the protection of society are of particular significance for purposes of the exercise of the sentencing discretion in a case such as the present. It is the weight that is appropriate to be given to this element that, in my opinion, justifies the significant sentence imposed by Whealy J upon the appellant.

83 The objective acts of the appellant, which did not go beyond collecting materials for future use, did not give rise to any imminent, let alone actual, threat of personal injury or damage to property. Such preparatory acts, even though criminalised, would not at first appear to justify so substantial a penalty. However, the position is different in the light of his Honour’s clear and justifiable findings of fact that the appellant has not resiled from the extremist intention with which these acts were performed.

84 As Price J notes, the issues involved in sentencing for offences of this character were considered by the Court of Criminal Appeal of Western Australia in R v Roche [2005] WASCA 4; (2005) 188 FLR 336. I agree with the observations made by Price J about that judgment.

85 Roche was not, however, the first Court of Criminal Appeal to consider in detail sentencing principles relevant to crimes of this character. In R v Sakr (1987) 31 A Crim R 444 the Court of Criminal Appeal of Victoria was concerned with an offender who had placed explosive devices with intent to cause an explosion likely to endanger life or cause serious injury to property. The offence in that case was motivated by financial considerations and, accordingly, issues of personal deterrence were relevant in a manner which, for reasons I will discuss below, are not as pertinent to the offence presently under consideration.

86 In that context Crockett J said at 451:

“The use of bombs and explosives is the trademark of the terrorist, whose acts of lawlessness have engendered a special revulsion that is due not only to the fact that death is so often the intention of the perpetrator, but also because the recklessness with which the offence is, by its very nature, invested is so likely to lead to the loss of innocent lives and, less importantly, to the destruction of the property of innocent third persons. It is an offence that is callous in its conception, wanton in its perpetration and, if the intent is given effect to ruthlessly destructive in its aftermath. It is a crime that is relatively novel in this country, as I have already indicated, and yet it is plain that there is a community recognition that it is regarded with a particular repugnance because its commission represents a profound assault upon a stable society and the law and the law and order that is necessary for that society’s survival. Those responsible for such reprehensible conduct must expect to suffer condign punishment.

If ever there were a case in which the nature of the offence and the circumstances of its commission, called for a deterrent penalty, then this is that case. The court is justified in believing that the community would expect that the punishment to be imposed should mark its intention, so far as it might be within the power of the court to do so, to arrest the incipient growth of terrorist-style criminal activity in this community.”

87 I agree with these observations. The reference to deterrence in this passage was, no doubt, a reference to both general and specific deterrence. However, deterrence in both respects may, in many cases, be entitled to less weight whenever it appears, as the example of suicide bombers suggests, that the force of an ideological or religious motivation is such that deterrence is unlikely to work.

88 The crimes under consideration in the present case, in which the conduct must occur with the “intention of advancing a political, religious or ideological cause” (Div 100.1), together with the findings of fact made by Whealy J, suggest that deterrence is of less significance than usual. In such a context, the element of protection of the community is entitled to greater weight than may otherwise be appropriate.

89 In R v Martin (1999) 1 Cr App R (S) 477 at 480, Lord Bingham CJ, as the Senior Law Lord then was, said: “In passing sentence for the most serious terrorist offences, the object of the Court will be to punish, deter and incapacitate; rehabilitation is likely to play a minor (if any) part”.

90 In Roche McKechnie J, with whom Murray ACJ agreed, quoted this sentence at [112], and adopted as one of the sentencing principles applicable to a case of this character at [119]:

“For the most serious terrorist offences the sentence must be of a severity appropriate to the circumstances. The object of the sentence is to punish, deter and incapacitate.”

91 Although it is necessary to treat remarks made in a different statutory context with care I note that in R v Parole Board ex parte Smith [2005] UKHL 1 at [23] Lord Bingham referred to “the well-known objects of a custodial sentence (retribution, personal and general deterrence, incapacitation, reform, rehabilitation). But the predominant purpose of the sentence will be punitive ...”.

92 I will refer below to some aspects of the debate about the role of incapacitation in the exercise of a sentencing discretion. However, for purposes of its application in Australian law, this element should be understood as encompassed by the element of “protection of the community”, recognised as a separate element by the High Court in Veen (No 2).

93 There is authority in Australia which suggests that “protection of the community” is an overall umbrella identifying the purpose of all of the different elements traditionally listed as matters to which consideration must be given in the exercise of a sentencing discretion. Those matters include punishment, general and specific deterrence, and rehabilitation, but not, in Australian authority, separate reference to an element of incapacitation. The authorities which adopt community protection as an umbrella, rather than as a separate element, include the frequently cited judgments of R v Cuthbert [1967] 2 NSWR 329 at 330, and The Queen v Radich [1954] NZLR 86 at 87.

94 However, the analysis by the High Court in Veen (No 2) clearly treats the element of protection of the community as separate. In Veen (No 2) the joint judgment expressly stated at 476:

“The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case.”

95 Similarly at 477 the joint judgment referred to a particular circumstance in which: “retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted”.

96 The joint judgment made it clear that the principle of proportionality required the element of “protection of society” to be taken into account as a separate matter, but not in such a way as would fail to give appropriate weight to other factors. The joint judgment said at 473:

“It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible.”

97 The reference to “merely to protect society” and “merely by way of preventive detention” indicates that the “protection of society” is a relevant consideration and, in appropriate circumstances, will be entitled to weight.

98 Mason CJ, who was part of the majority in Veen (No 2), had made pertinent observations in the first case, which are consistent with the joint judgment in the second. His Honour observed:

“The protection of the community from violent crime, it has always been recognized, is a very important factor to be taken into account in sentencing. It would be surprising if it were otherwise. The court must, in sentencing a person who has been convicted of a very serious offence involving violence, if his record and the expert evidence plainly demonstrate that there is a real likelihood of his committing that kind of offence again if he is restored to liberty, ensure by the order which it makes that he will not be released whilst that likelihood continues. If it should appear that the propensities or predilections of the person convicted are such that the imposition of life imprisonment is necessary to protect the community from violent harm, then the court should impose that penalty. In the case of a very serious offence involving violence, it will rarely transpire, if at all, that a sentence of life imprisonment is disproportionate to the offence of which the prisoner has been convicted, given that he has a prior record of conviction for that class of offence and that he has a propensity, because he is unstable or disordered, to commit violent crime.

In saying this it is not my intention to deny, or derogate from, the principle that the punishment to be inflicted must be proportionate to the crime. Rather it is my purpose to say that the conflict between that principle and the object of protecting the community arises in relation to less serious offences where the proportionality principle inhibits the imposition of a long term sentence which might otherwise be thought necessary to protect the community.” (Veen v The Queen (1979) 143 CLR 459 at 467-468.)

99 Subsequent authority in the High Court similarly appears to regard protection of society as a distinct element.

“Many, probably a large bulk of, sentences reflect compromises between conflicting objectives of sentencing. One objective is to impose a sentence that reflects adequate punishment for the culpability of the convicted person, having regard to the community’s view concerning the need for retribution, denunciation, deterrence, community protection and sometimes vindication.”

“[20] ... [A]s Veen (No 2) held, common law sentencing principles have long accepted protection of the community as a relevant sentencing consideration.”

104 To similar effect, in Thomas v Mowbray [2007] HCA 33; (2007) 81 ALJR 1414 at [109] Gummow and Crennan JJ quoted the first of the extracts I have quoted above from Veen (No 2) at 476 and said:

“[109] The protection of the public as a purpose of decision-making is not alien to the adjudicative process. For example, it looms large in sentencing after the determination of criminal guilt.”

105 The reference in Veen (No 2) to preventive detention reflects a controversial aspect of the acceptance of incapacitation, being the terminology that Lord Bingham used in the context of sentencing for terrorist offences, which has been debated in the sentencing literature and in a number of judgments. (See e.g. Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 at 305 per Kirby J.)

106 The difficulty of predicting future behaviour, which is in any event inherent in other sentencing principles including general and personal deterrence and rehabilitation, is often referred to as one of the defects of reliance on individual incapacitation as a basis for increasing the severity of a sentence. The other significant issue is the sense of unfairness of punishing a person not for what they have done, but for what they may do in the future. (See generally Franklin Zimring and Gordon Hawkins Incapacitation: Penal Confinement and the Restraint of Crime (1995) Oxford University Press, New York, at 62ff; Andrew Ashworth “Criminal Justice Act 2003 (2) Criminal Justice Reform: Principles Human Rights and Public Prosecutions” (2004) Criminal Law Review 516 esp at 519-521; Mirko Bagaric “Incapacitation, Deterrence and Rehabilitation: Flawed Ideals or Appropriate Sentencing Goals?” (2000) 20 Criminal Law Journal 21 esp at 28-29; Andrew von Hirsch and Andrew Ashworth Principled Sentencing: Readings on Theory and Policy (1998) Hart Publishing, Oxford Ch 3; Andrew Ashworth Sentencing and Criminal Justice 4th ed (2005) Cambridge University Press, Cambridge at 80ff.)

107 In this respect it is pertinent to note the observations of Gleeson CJ in Fardon supra at 589-590:

“The way in which the criminal justice system should respond to the case of the prisoner who represents a serious danger to the community upon release is an almost intractable problem. No doubt, predictions of future danger may be unreliable, but, as the case of Veen shows, they may also be right. Common law sentencing principles, and some legislative regimes, permit or require such predictions at the time of sentencing, which will often be many years before possible release. If, as a matter of policy, the unreliability of such predictions is a significant factor, it is not necessarily surprising to find a legislature attempting to postpone the time for prediction until closer to the point of release.”

108 In the context of the crimes presently under consideration, incapacitation does not merely refer to the prospect that in the future a particular offender will re-offend. With respect to the crime of preparation for terrorist acts the Court is not simply concerned with future criminal conduct of a recidivist character. It is concerned with the possibility of perfection of the very crime for the preparation of which the offender has been found guilty.

109 Accordingly, the issue is not merely one of punishing an offender for something s/he may do in the future. It is the recognition that the protection of society requires the offender to be prevented from perpetrating the offences which s/he was preparing to commit. Giving the element of protection of society substantial weight, particularly in a context where personal deterrence and rehabilitation are, given the nature of the offence and the findings of fact, entitled to little weight, is consistent with the principle of proportionality laid down in Veen (No 2).

110 For these reasons I agree that the sentences imposed were well within the exercise of the sentencing discretion by the sentencing judge. The protection of the community required a substantial sentence and his Honour was correct to impose one.

Conclusion

111 For the above reasons I agree that the appeal should be dismissed.

112 BARR J: The appellant, Faheem Khalid Lodhi, was tried before Whealy J and a jury on four charges, namely that -

1. On or about 3 October 2003 at Sydney he collected documents, namely two maps of the Australian electricity supply system, which were connected with preparation for a terrorist act, knowing the said connection;

2. On or about 10 October at Sydney he intentionally did an act in preparation for a terrorist act, namely sought information concerning the availability of materials capable of being used for the manufacture of explosives or incendiary devices;

3. On or about 24 October 2003 at Sydney he made documents, namely a set of aerial photographs of certain Australian defence establishments, which were connected with preparation for a terrorist act, knowing the said connection; and

4. On or about 26 October 2003 at Sydney he possessed a thing, namely a document containing information concerning the ingredients for and the method of manufacture of poisons, explosives, detonators and incendiary devices and concerning “intelligence” which was connected with preparation for a terrorist act, knowing the said connection.

113 The jury found the appellant guilty of the offences charged in the first, second and fourth counts and not guilty of the offence charged in the third count.

114 His Honour sentenced the appellant to twenty years’ imprisonment on the first count and ten years’ imprisonment on each of the second and fourth counts, each sentence to commence at the same time. There was thus an effective sentence of twenty years’ imprisonment. His Honour fixed a non-parole period of fifteen years.

115 The appellant appeals against the convictions and seeks leave to appeal against the sentences.

The facts

116 The facts found by his Honour were as follows: [2006] NSWSC 691 at [8] – [36] -

In mid-May 2003 a French citizen, one Willie Brigitte, arrived in Australia. This man, I accept, had trained at a Lashkar-e-Taiba paramilitary training camp in Pakistan in late 2001. One of his fellow trainees, Yong Ke Kwon, gave evidence in the trial about his own training at the Lashkar-e-Taiba camp and his meeting there and relationship with a man he knew as Salahudin. He identified Salahudin from a photograph of Willie Brigitte shown to him in November 2003. The organisation Lashkar-e-Taiba has now been prescribed as a terrorist organisation by the Australian Government and it is also regarded in this light by the Government of Pakistan. Its primary focus is on the removal of Indian security forces from India controlled Kashmir. But it has a broader interest in terrorism generally and may, perhaps, have had some links with the terrorist organisation al-Qaeda. It is clear, however, that military and religious training occurred in the Le-T camp attended by both Brigitte and Kwon; and that the training related not only to the local situation but was intended to aid in the battle against oppression of Muslim communities elsewhere.

There is very little detailed evidence about Willie Brigitte’s activities while he was here in Australia. This much however is clear: a few days before he arrived in Australia, the offender set up a mobile phone service in a false name. It has been referred to throughout the trial as the “Sam Praveen” telephone service. Two calls were made from Willie Brigitte’s phone in France to the Sam Praveen telephone service. The first occurred on 7 May 2003, a day or so after the offender had obtained the service. The second of these calls was made on 13 May 2003, the day before Brigitte left France for Australia. There was also evidence to show that, although the offender had never met Willie Brigitte, arrangements had been made for him to meet and collect him on the day of his arrival in Sydney. This is, in fact, what happened and two the men spent most of the day together.

The connecting link between the offender and Willie Brigitte appears to be a somewhat shadowy figure in Pakistan known to both men. His name was “Sajid”. The offender said he met him in Pakistan at a mosque during visits there in 2002 and 2003. The offender said it was Sajid who asked him to look after Willie Brigitte on his arrival in Australia. I have no doubt that this was so. I do not accept, however, that the relationship between the two men was an innocent one, as the offender endeavoured to explain it. His version was that he gave assistance to Willie Brigitte as a matter of courtesy to a stranger travelling in a new country; and that he did so at the behest of a mutual friend who had asked that such courtesy be extended. In my view, the evidence establishes that Sajid was endeavouring to co-ordinate a liaison between the offender and Willie Brigitte in Sydney so that, in general terms, the prospect of terrorist actions in Australia could be explored.

I should say immediately that there is no evidence to indicate precisely what Brigitte’s role was to be in relation to any terrorist activity. There is no evidence to indicate, for example, that he himself was to be involved in the commission of any of the three offences in respect of which the offender has been found guilty. But there was a continuing association between the offender and Willie Brigitte during his short stay in Australia. This is exemplified by a number of calls made by an Australian Mobile phone service associated with Brigitte (again in a false name, known during the trial as the “John Huck” telephone service) to the “Sam Praveen” telephone service.

There is also evidence that Willie Brigitte’s French telephone service made approximately nineteen telephone calls to Sajid in Pakistan before Brigitte left for Australia. After Willie Brigitte’s detention and deportation from Australia, there was evidence that the offender telephoned Sajid’s telephone number from a public phone box in Campsie. This occurred after the offender had been at an Internet Café with one Abdul Rakib Hasan. Hasan, who worked in a Halal butcher’s shop at Lakemba, also knew Brigitte.

There was also evidence that the offender and Hasan visited Brigitte at his flat at Boorea Avenue, Lakemba on at least two occasions. Although the evidence does not enable me to discover the details of what transpired between the offender and Willie Brigitte, I am satisfied beyond reasonable doubt that the relationship was not an innocent one. I am also satisfied that the connecting link between the two men was their joint interest in contemplating and discussing the possibility of some type of terrorist activity in Australia. This association came to an abrupt end in October 2003 in circumstances that achieved considerable notoriety in the Australian media. French authorities had notified Australian Intelligence that Brigitte had a substantial connection with terrorism and this, so it appears, led to his sudden detention and swift deportation from Australia to France. It seems that he is still in France awaiting determination as to whether he is to face terrorism charges under the laws in that country relating to his activities in France or elsewhere. Brigitte gave no evidence in the trial.

A little under a week before Brigitte’s detention took place, the offender obtained a desk map and a wall map of the electrical supply system from Energy Supply at Level 6, 208 Pitt Street Sydney. He told Ms Bakla, who worked for the organisation, that he was starting a business and that he wanted to place a wall map in his office. The offender was asked to fill out a form giving his name, address and company name. The name he wrote down was “M Rasul”. His position was given as “partner”; and the company name as “Rasul Electrical”. The postal address given was “Post Office Box 2359 Smithfield”. The telephone number, which was altered by Ms Bakla to include an additional 9, was 9230.051.

There was no contest at trial that it was, in fact, the offender who made these enquiries and that it was he who was supplied with the maps. The offender explained before the jury that his obtaining of the maps had nothing whatsoever to do with terrorist related activities. In fact, he said that he wanted them for a business of an electrical nature he was proposing to establish. The offender expressly disclaimed any intention that these maps were connected with, or in any way involved in or part of any plot, to carry out a terrorist act against the Electricity Supply System. The offender also explained why he filled out the application form in the way he did. The Post Office Box address and the telephone number were simply errors. The name “Rasul” or “Mohamed Rasul” was to be part of the name he proposed to give the electrical company when it was established.

Consistently with the jury’s verdicts, I find that these explanations and excuses were untrue. The real reason the offender gave a false name, telephone number and address was that he did not want his own identity to be known. This was because his plain purpose in securing the maps related to an intention he held at the time to use the maps in connection with a proposal for an enterprise that would involve bombing part of the Australian Electricity Supply System.

Not only did the offender intend to use the maps for this purpose when he collected them, it was also his intention that any bombing of the electrical system by the detonation of a homemade explosive or incendiary device would be done to advance the cause of violent jihad and be carried out so as to intimidate the Government of Australia and the Australian public.

The offender’s association with Willie Brigitte and the man Sajid in Pakistan were not the only matters relevant to the existence of these intentions. There was also found in his possession a significant amount of material which threw considerable light on his intentions in relation to these offences. The material included a CD-Rom which was described, throughout the trial, as the “jihadi CD”. This was a virtual library containing exhortations to violent jihad, justifications for suicide bombings (called “martyrdom” in the text of the material), and which extolled the virtues of those who had given their lives to the murder of innocent civilians and others in the name of extremist Islam. Much of the material exhorted the reader or listener to follow, or at least support violent jihad. In addition to this CD, there were two volumes of the Lion of Allah, other material and Chechnyan videocassette glorifying those who had given their lives in the fight between Chechnya and Russia.

The offender told the jury that he had never seen the “jihadi CD” and that he could not explain its presence in the material found near his computer at home. Although he acknowledged the existence of some of the other material I have mentioned, he explained that he had either not seen it or, if he had seen it, it was only in part and that he had generally little to do with the contents.

20 I do not accept these explanations. Nor do I accept the offender’s attempts to distance himself from the material so obviously found in his possession. Rather, I think the truth is that all this material makes it clear that the offender is a person who has, in recent years, been essentially informed by the concept of violent jihad and the glorification of Muslim heroes who have fought and died for jihad, either in a local or broader context. The material is eloquent as to the ideas and emotions that must have been foremost in the offender’s mind throughout October 2003 and later, at least until the time of his arrest.

Although these specific intentions were, I am satisfied beyond reasonable doubt, at the forefront of the offender’s mind when he collected the maps, it seems clear that he had not at that stage necessarily made a final determination as to the precise target, or the precise area of the target, that was to be hit. Indeed, the maps themselves would not have given sufficient information to the offender. Nor would they, of themselves, have given sufficient insight into how such an attack upon the electrical system could be maintained. They were, however, a starting point for a terrorist related enterprise potentially of some considerable magnitude.

Of further relevance to this first offence, and indeed, to each offence found proven against the offender, was the material located at his workstation during the execution of a search warrant on 26 October 2003. This comprised 15 pages of carefully written out handwriting in the Urdu language, or at least in the Urdu script. It was not disputed that this document was in the handwriting of the offender. He explained that, many years earlier, he had seen this material written in English on a computer he was using at University during the course of his studies. Although he maintained that the information was of no special interest to him, it is obvious that he must have spent several hours writing out the material he selected from the computer screen. He then kept it in his possession for a considerable time afterwards. The offender maintained that he had forgotten about this material and that it had found its way to his workplace by accident, as it were.

I reject the offender’s explanation for the possession of this document. Moreover, I find that its contents were central to his thinking and state of mind at least during 2003 and thereafter. The offender’s attempt to explain or justify his possession of this material was simply incredible.

These 15 pages were fairly described by the Crown in its submissions before the jury as “a terrorism manual for the manufacture of homemade poisons, explosives, detonators and incendiary devices”. Although the recipes were not particularly sophisticated or scientific, they included formulas for homemade grenades, petrol bombs and, relevantly for this present purpose, an explosive device containing an explosive known as urea nitrate. This particular explosive could be easily made, as the evidence of Dr Spears and Mr Taylor showed during the trial. Once detonated, it had the capacity for significant damage to property and for substantial loss of life for those who may have been in the vicinity when the explosion occurred. This situation, of course, would depend on the size of the urea nitrate parcel detonated.

Throughout the trial, a central issue for the jury’s determination had been the state of mind or the intentions of the offender. The contents of these documents, Exhibit “G” and its English translation Exhibit “H”, make it plain beyond reasonable doubt that, when he collected the wall maps from Ms Bakla at Energy Supply, the subject of homemade bombs or explosives was likely to have been at the forefront of his thinking.

I am not satisfied beyond reasonable doubt, however, that the offender had at any time made up his mind that it would be he who would carry out the bombing of the Australian Electrical Supply System. Indeed, I am perfectly satisfied that the proposal had not reached the stage where the identity of a bomber, the precise area to be bombed or the manner in which the bombing would take place, had been worked out. The obtaining of the electrical maps was at a very preliminary stage indeed, a matter, which the Crown accepted throughout the presentation of its case to the jury.

The day after Willie Brigitte’s detention commenced, the offender exchanged faxes with one Melissa Phelps. She was an employee of Deltrex Chemicals. Here again, he used a false name and a fictitious address. The fax-headed sheet he created was this time that of a non-existent business called “Eagle Flyers”. It had a Post Office box “2286 Smithfield”. This was a fictitious business identity in all respects although, of course, the fax number of the firm of Thomson Adsett Architects was given to Ms Phelps. It is also of interest to note that the offender, in making the enquiry, spelt his first name differently from its usual spelling; and he signed his name with a signature which was not his usual signature.

The offender told Ms Phelps that he was going to start up a detergent business. He gave Ms Phelps a list of the chemicals he wanted. Ultimately a price list for certain chemicals was sent by Ms Phelps to “Fahim” at Thomson Adsett. It became Exhibit “J” in the trial. The price list contained and included chemicals which were to be found on the Urdu document Exhibit “G”. In particular, the list gave prices for minimum quantities of urea and nitric acid, the components for a urea nitrate homemade bomb.

Exhibit “J” was not however received by the offender. It found its way to Ms Kenny, his superior, at work. Ms Kenny confronted the offender. She asked him whether the document had anything to do with his work. He told her that it did not. It has to do, he said, with his family company. He explained to her that his fax was broken and he needed to use the work fax for “family company business”.

Before the jury, the offender gave a similar explanation. He explained that he had a proposal for exporting chemicals to Pakistan. Indeed, there was other evidence in the trial, from his family in Pakistan and other people, that at one stage he had contemplated some sort of business venture, which would involve the exporting of certain chemicals from Australia.

I am satisfied beyond reasonable doubt, however, that the explanation given to the jury for the offender’s obtaining the price list of chemicals from Deltrex Chemicals was a false explanation. The truth of the matter was that he wanted the information to assist in his proposal for planning and carrying out a bombing enterprise within Australia as part of a terrorist act. Again, it is quite possible, as at 10 October 2003, that the offender may well have still had in contemplation the bombing of part of the Electrical Supply System. It is not possible to say, however, that when the enquiries were made of Deltrex Chemicals, the precise target had been selected. As before, it is clear that the planning was at a very preliminary stage. I am not satisfied beyond reasonable doubt that the offender intended that he himself would necessarily assemble the bomb or that he would be the bomb carrier when it came time to place it at or near the ultimate target. But I am satisfied beyond reasonable doubt that his role in the enterprise was an important one. This is evidenced by the fact that it was he who was making the enquiry to Deltrex Chemicals, albeit using a false name. Once again the offender gave an explanation as to why he used the name “Eagle Flyers”. Once again, he claimed that a mistake had simply been made in the postal address.

I do not accept these explanations as true. To the contrary, I find that they were patently false.

I am satisfied beyond reasonable doubt that the offender’s intentions in obtaining the list of chemicals was in contemplation for an action that he intended would be carried out to advance the cause of violent jihad. The information was sought with the intention on his part to influence by intimidation the Government of Australia and to intimidate the public.

The third and final offence relates to the offender’s possession of the Urdu document Exhibit “G”. This was found, as I have said, at his workstation on 26 October 2003. The offender, as I have already recounted, endeavoured to distance himself from this document before the jury. It is quite apparent however, that the jury did not accept his explanation. Consistently with the jury’s verdict, I do not accept his explanation and reject it. Indeed, the offender’s explanation in relation to the way in which this document came into existence and the reasons for his possession of it through until October 2003 were, as I have said, simply unbelievable.

I am satisfied beyond reasonable doubt that the offender’s possession of this document reflected very clearly his intention to make use of its contents for the purpose of using the information to assist in an enterprise to assemble an explosive which would be used as part and parcel of the ultimate carrying out of an act of terror within Australia. I am satisfied that his intention or state of mind at the time it was found in his possession, and indeed prior to that time and well after, was that the material could be used to advance the cause of violent jihad in Australia. Moreover, I am satisfied beyond reasonable doubt that it was the offender’s intention that any such enterprise would be carried out to coerce, or influence by intimidation, the Government of Australia and to intimidate the public.

I am not satisfied beyond reasonable doubt, however, that the offender had formulated any intention as at 26 October 2003 to poison any person or to cause the death of any person by the use of poison. Rather, I think the document Exhibit “G” reflected a range of options. Any one of these would have been available for the carrying out of an act of terror but, so far as the offender’s personal intentions were concerned, he favoured the use of an explosive or explosive device. I am satisfied beyond reasonable doubt that in relation to each of the three offences, the offender contemplated that the ultimate act of terror would, at least, cause serious damage to property. I cannot be satisfied beyond reasonable doubt that, at this very preliminary stage, a definite intention had been formulated to use an explosive to kill innocent people. I am satisfied, however, that the offender would have been aware, or at least would have contemplated, that, by using an explosive to damage property or infrastructure, there would have been a risk of serious physical harm to people who might be in the vicinity; and that even death might be occasioned to persons who happened to be close to the site of the explosion.

117 The first ground of appeal is as follows -

His Honour erred in failing to quash the indictment, because

i. the indictment lacked particularity; and

ii. the indictment was duplicitous

118 Before the trial began, the appellant appealed by leave to this Court against the refusal of the trial judge to quash counts in the indictment as it then stood. The second of the grounds argued was the same as the present ground. This Court held that the indictment had not failed sufficiently to particularise the terrorist act relied on and was not duplicitous: R v Lodhi [2006] NSWCCA 121 in the judgment of Spigelman CJ, with whom the other members of the Court agreed, at [57] – [77]. Following that appeal the matter was remitted to Whealy J in accordance with this Court’s orders. The Crown amended the indictment in order to state elements of the offences charged which were previously lacking but determined by this Court to be essential: see judgment at [78] – [94].

119 In the present appeal counsel for the appellant, Mr Boulten SC, acknowledged that the appellant’s intention in relying on this ground of appeal a second time was to reserve his rights in case the judgment of this Court should be reviewed. I do not think that the Court should consider this ground a second time. For the reasons already given, it has not been made good.

120 The second ground of appeal is as follows -

His Honour erred in applying an unconstitutional test in determining whether information, the disclosure of which was sought by the appellant, was subject to public interest immunity.

121 I agree, for the reasons given by the Chief Justice, that s31(8) National Security Information (Criminal and Civil Proceedings) Act 2004 (Commonwealth) does not impinge on the integrity of the judicial process.

122 The third and fourth and grounds of appeal may be dealt with together. They are as follows -

His Honour erred in refusing to exclude the entirety of the evidence relating to Willie Brigitte.

His Honour erred in refusing to exclude evidence of the identification of Willie Brigitte and, as a consequence, the entirety of the evidence relating to Willie Brigitte.

123 The evidence of association between the appellant and Brigitte may be summarised thus -

Brigitte trained at a Lashkar-e-Taiba paramilitary training camp in Pakistan in late 2001. Lashkar-e-Taiba is a prescribed terrorist organisation. Brigitte’s training related not only to the local struggle for military control of Kashmir but to the wider concerns of Muslims elsewhere.

The appellant spent a considerable time in Pakistan in 2001, 2002 and in the early part of 2003. He knew a man there called Sajid. Sajid asked him to look after Brigitte on his forthcoming visit to Australia.

The appellant obtained a mobile telephone in the fictitious name Sam Praveen.

Shortly before leaving France on 14 May 2003 to come to Australia, Brigitte made a number of telephone calls to Sajid. On 13 and 14 May he telephoned the appellant on the Sam Praveen telephone.

Brigitte arrived in Australia on 16 May 2003, having travelled via New Zealand. He entered on a tourist visa. In the appellant’s notebook was an entry 16th Friday 8:30am NZ. Then followed a flight number and the note Blue trousers – yellow t-shirt – glasses. The appellant met Brigitte and offered him the hospitality that Sajid had requested.

Brigitte remained in Australia until October 2003. He was arrested on 10 October and deported on 17 October. During that time he obtained a mobile telephone service in the fictitious name John Huck. This was done by replacing the SIM card in a mobile telephone associated with a man called Abdul Rakib Hasan. During Brigitte’s stay in Australia there were several calls between the Huck and the Praveen telephones.

On 3 October 2003 the appellant obtained the electricity grid maps the subject of the first count. He obtained the details of chemicals the subject of the second count on 10 October, the day after Brigitte’s arrest.

Hasan visited Brigitte’s flat in the company of a man who said he was an architect, that he came from Sialkot, Pakistan and that he had recently returned from that country. The Crown case was that that man was the appellant.

Brigitte’s premises were searched and the items found included these -

A card, apparently stamped by a Paris retailer, bearing in handwriting the Sam Praveen telephone number, but written in the sequence appropriate for calls originating in France;

A map of Australia issued by the anti-nuclear movement;

A publication called L’Art de Guerre;

A notebook containing handwritten extracts from “The Art of War”;

An empty magazine for a military Styer rifle; and

A DVD or CD containing images of a substantial number of pages from magazines in the French language, with photographs, appearing to be articles about military weapons and assault, articles on military and intelligence and on the Australian SAS in Afghanistan.

On 26 October 2003 the appellant, in the company of Hasan, went to an internet café and used a public telephone to call Sajid.

124 Not all the evidence I have summarised was objected to. That which was is as follows -

1. Yong Ki Kwon identified a photograph of Brigitte as of a man with whom he had trained every day and to whom he had spoken every day at a Lashkar-e-Taiba training course in 2001. The man had called himself Salahudin.

2. Rashid Altaf and Rashid Ahmad gave evidence. Mr Altaf lived at the premises in Boorea Avenue Lakemba where a man calling himself Jamal came to live. Mr Altaf identified a photograph of Brigitte as of the man Jamal. Mr Altaf’s friend, Rashid Ahmad, used to visit him there. During the first week of Jamal’s residence there, Jamal received a visit from two men. One was a Bengali whom Mr Altaf and Mr Ahmad recognised as a butcher who worked in a shop in Lakemba. They identified him by photograph as Hasan, the person previously referred to in these reasons. They did not recognise the other. He said that he was working as an architect in the city, that he came from Sialkot, Pakistan and that he had recently returned to Australia from that country.

3. Evidence of things found at Brigitte’s premises.

4. Evidence of telephone records showing that a telephone found in Brigitte’s premises was used to communicate with a telephone found in the accused’s premises.

125 It was submitted on appeal that the evidence objected to could not if accepted rationally affect, directly or indirectly, the assessment of the probability of a fact in issue: Evidence Act 1995 s55. Since the evidence failed that test it was inadmissible: s56(2).

[6] As is always the case with any issue about the reception of evidence, identification evidence being no exception, the first question is whether the evidence is relevant. No attention was given to this question in the arguments advanced at trial, or on appeal to the Court of Criminal Appeal, but that question must always be asked and answered. Further, although questions of relevance may raise nice questions of judgment, no discretion falls to be exercised. Evidence is relevant or it is not. If the evidence is not relevant, no further question arises about its admissibility. Irrelevant evidence may not be received. Only if the evidence is relevant do questions about its admissibility arise. These propositions are fundamental to the law of evidence and well settled. They reflect two axioms propounded by Thayer and adopted by Wigmore:

[7] In determining relevance, it is fundamentally important to identify what are the issues at the trial. On a criminal trial the ultimate issues will be expressed in terms of the elements of the offence with which the accused stands charged. They will, therefore, be issues about the facts which constitute those elements. Behind those ultimate issues there will often be many issues about facts relevant to facts in issue. In proceedings in which the Evidence Act 1995 (NSW) applies, as it did here, the question of relevance must be answered by applying Pt3.1 of the Act and s55 in particular. Thus, the question is whether the evidence, if it were accepted, could rationally affect (directly or indirectly) the assessment by the tribunal of fact, here the jury, of the probability of the existence of a fact in issue in the proceeding.

(footnotes omitted)

127 The Crown case at trial was that the accused had a covert and illicit relationship with Brigitte, a trained terrorist, who came to Australia in circumstances tending to demonstrate that he had done so in connection with the establishment of preparatory steps towards terrorist acts and not as a tourist. It was not the Crown case that the evidence would show that Brigitte was involved in the acts done by the appellant the basis of the charges, but that it completed a circumstantial case, enabling the jury to infer that the appellant had performed the acts charged with the requisite knowledge and intention.

128 Mr Boulten submitted on appeal that the question whether or not Brigitte was present in Australia in circumstances tending to suggest the preparation of terrorist acts was not a fact in issue. It may have been relevant to a fact in issue if the Crown had suggested that the appellant had conspired with Brigitte or was otherwise involved in a joint enterprise with him, but that was not the Crown case. Therefore, it was submitted, evidence relating to Brigitte was not relevant. It was submitted that taken at its highest the evidence was not capable of demonstrating that Brigitte was establishing the preparatory stages of terrorist acts. The evidence established at best that the appellant knew Brigitte and that Brigitte had trained in a terrorist camp. The question to be answered was therefore whether the fact that the appellant knew a trained terrorist could rationally affect the assessment of the probability that his actions were connected with a terrorist act or, in relation to count two, that his actions were done in preparation for a terrorist act. The answer, it was submitted, was that it could not. It was merely evidence of association between the two men.

129 Mr Boulten relied on a series of cases dealing with evidence of the accused’s association with offenders as proof of guilt: United States v Polasek 162 F.3d 878 at 884 (5th Cir. 1998); United States v Lopez-Medina 461 F.3d 724 at 741-42 (6th Cir. 2006); United States v Romo 669 F.2d 285 at 288-89 (5th Cir. 1982); R v Ejiofor [2002] OJ No. 891; Bounds v The Queen [2006] HCA 39 in the judgment of Kirby J at [84] and R v Fung [2002] NSWCCA 479. The facts of those cases are of no particular assistance and need not be repeated here. The United States and Canadian cases were concerned with the wrongful admission of evidence that associates of the relevant accused had been convicted on other occasions on charges of the kind that the accused was then facing. The principle which they establish is that the law does not permit proof of guilt of an accused person merely by proving that the accused associated with other guilty persons. Something more is needed. But there is no law that prevents the Crown from proving all the circumstances in which an act in question was done in order to show that in doing it the accused had a particular state of mind. Those circumstances may include the accused’s contemporary association with a person who, whether complicit or not, may be thought to be familiar or concerned with or to have an interest in fostering acts having the character of those charged. If the evidence of association tends to explain why the accused acted as he did, it is probative.

130 It may be accepted, as his Honour recognised, that the evidence could not establish that Brigitte was involved in the acts the appellant was charged with having committed. But I do not consider that the available effect of the evidence was limited in the manner described by Mr Boulten. In giving judgment his Honour said this -

For present purposes, the facts in issue extend to and include the mental ingredients of the charges against the accused, described in the Criminal Code Act as fault elements: for example, the physical acts of the accused must have been deliberate; they must have been connected with the preparation for a terrorist act; and the accused must have known, that is have been aware, of the connection. In relation to count 2, the Crown alleges that the accused “intentionally” did an act in preparation for a terrorist act and this state of mind must be proved as well. All the fault elements involved in each charge must be proved beyond reasonable doubt.

The material sought to adduced by the Crown (including the body of evidence identified by Mr Boulten SC and which forms the subject of the present application) is, in my view, all material, which, if it were accepted, could rationally effect the assessment of the probability of the existence of the fault elements I have identified.

131 It seems to me that his Honour’s conclusion was correct. The evidence objected to was more than mere evidence of association. The knowledge and intent of the appellant in collecting documents or seeking information or possessing the document specified in the fourth count was to be judged from all the surrounding circumstances. Those circumstances included that he was at all material times in frequent and secret communication with a terrorist trained in Pakistan. The appellant had spent a considerable time in that country. They had a mutual connection there. That terrorist had entered Australia pretending to be a tourist, but using a false name and a telephone service in a false name. By the use of these false names he kept his communications with the appellant secret. Like Brigitte, the appellant used a false name when using his mobile telephone. His intention was to conceal his communications with the trained terrorist. The acts of the appellant relied on by the Crown were committed close to the time of Brigitte’s arrest. It seems to me that the evidence was capable of establishing that the appellant had a secret relationship with Brigitte during the time immediately before he committed the acts on which the charges were based. Proof of the relationship explained why he engaged in a series of acts none of which was on its face necessarily one of criminal intent.

132 The alternative submission was that his Honour ought to have excluded the evidence because its probative value was outweighed by the danger of unfair prejudice to the appellant: Evidence Act 1995 s137. Mr Boulten submitted that in assessing the probative value of the evidence his Honour was obliged to conclude that at best it demonstrated that the appellant knew Brigitte, who had trained with a terrorist organisation almost two years earlier. If their relationship was covert that would not make it more likely, without proof of joint criminal activity, that the appellant was engaged in terrorist activity. There was no evidence that Brigitte was engaged in terrorist activity in Australia. So the probative value of the evidence was no more than minimal.

133 I do not accept that his Honour was bound to regard the probative value of the evidence as minimal. It seems to me that it derived substantial probative force from its capacity to reveal that what the appellant was doing was not a series of innocent acts.

134 On appeal, two sources of unfair prejudice were identified. The first, which was not raised at trial, was that so great was the body of evidence about Brigitte and so prominent was the place that it took at the trial that the jury were likely to overvalue it and become distracted from the true issues. Of the twenty-eight witnesses called in the Crown case, fourteen gave evidence about Brigitte and twelve of them gave evidence only about the Brigitte connection. Those witnesses were called first. Correspondingly large proportions of counsel’s addresses and the summing-up were devoted to the evidence of those witnesses. When the appellant gave evidence, thirty-eight of the one hundred and forty-three pages of the transcript of his evidence recorded questions about Brigitte.

135 The first witness called was Kwon, who gave evidence by videolink from the United States of America. His evidence took a day. In order to prove that Brigitte had had the relevant training, it was necessary to prove how Kwon had been trained. That evidence, it was submitted, would impermissibly connect the appellant with terrorist training when it was never the Crown case that he had been so trained.

136 It was submitted that the true issues were even more obfuscated by the Crown’s evidence about Sajid, which did not explain who he was or how he was related to the issues in the case, what he was doing and whether he had anything to do with Lashkar-e-Taiba.

137 Unfair prejudice was said to flow from the evidence of the lie the appellant told when giving the false name Sam Praveen in order to get his hands on the mobile telephone. There was reference to well known cases dealing with the risk of a miscarriage of justice when lies are resorted to to corroborate other evidence. It was submitted that there was no connection between the mobile telephone and the offences.

138 It was submitted that the Crown “ensured that the spectre of Brigitte was omnipresent throughout the trial” and that it was “inconceivable that the jury did anything other than give significant attention and subsequently (sic) weight to the evidence relating to Brigitte, even though the relationship between Brigitte and the appellant was, even at its very best, a side issue”. Reference was made to R v Yates [2002] NSWCCA 520 at [252] and Scott v R [1989] AC 1242 per Lord Griffiths at [1256].

139 It seems to me that proof that the appellant did the acts on which the charges were based, resulting wholly or mainly from direct evidence, was always going to be achieved quickly and with a modest amount of evidence. So far as the surviving counts are concerned, it might have been expected that the Crown would have little difficulty in establishing that the appellant collected the maps of the electricity grid, sought information from Deltrex and possessed the document written in Urdu. So it turned out. The appellant admitted the collection, seeking the information and possessing the document. The substantially contested issues in the case were always going to be concerned with the appellant’s knowledge and intention in doing those things. In that respect it was a circumstantial case and the Crown was obliged and, I think, entitled to point to every available relevant circumstance. In this respect it was necessarily an extensive case.

140 Before his Honour could properly have rejected the evidence under s137, it had to appear that there was a real risk of unfair prejudice, either because the jury would place undue emphasis on the evidence or use it in some irrational manner: Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 per McHugh JA at 609; R v Suteski [2002] NSWCCA 509; R v Yates; R v Lisoff [1999] NSWCCA 364; R v Serratore [1999] NSWCCA 377.

141 I do not think that if his Honour had been asked to consider these matters he could properly have concluded that there was a real risk that the jury would place too much emphasis on the evidence about Brigitte or that they would misuse it because they misunderstood it. No complaint is made about his Honour’s directions about how the Crown relied on the evidence. There was no assertion that Brigitte was involved in terrorist activities in Australia. The only relevant part played by Sajid was as an agency of communication between the appellant and Brigitte, a fact that the jury could not have failed to understand. The appellant’s lies were proved only to show his intention to conceal his actions and divert suspicion from himself, and in particular to conceal his communications with Brigitte. Although the body of evidence pointed to was large, it was in a practical sense the only evidence that went to the only contested issues, all of which required consideration one way or another of the appellant’s state of mind.

142 In my opinion the criticism of the sheer size of the body of circumstantial evidence is unjustified, as is the suggestion that some risk of unfair prejudice flowed from the amount of evidence adduced or from the order in which witnesses were called. There is no cause for any suggestion that the Crown conducted its case in a manner intended or calculated to attract unfair prejudice.

143 There is a second argument about unfair prejudice which, unlike the first, was dealt with at trial. Unfair prejudice is said to have resulted from publicity about Brigitte in the news media and the Parliament prior to the appellant’s trial. The trial began on 19 April 2006, two and one-half years after Brigitte’s arrest and deportation. The appellant tendered at trial a document collating and summarising no fewer than one thousand five hundred and seventy-one published references to Brigitte. They included newspaper articles published in Sydney and in interstate capital and regional cities as well as radio news broadcasts, including national broadcasts on the Australian Broadcasting Commission networks. The first publication was made on 27 October 2003 and the last on 14 January 2006. Some one thousand two hundred and forty of them happened within a year of Brigitte’s arrest and deportation and the remainder were spread over the next one and one-half years. The same material was tendered on appeal. It is impossible to deal with much of the detail, but it may be said that Brigitte was reported to have been suspected of wishing to blow up the Lucas Heights atomic reactor and the Rugby World Cup final. There were articles about uranium mines and places where nuclear ships had docked. There was what has been described as a list of completely speculative propositions, including an assertion that Brigitte was said to have been involved in attempts to kill some unidentified Taliban leader. Prominent were repeated references to the belief that Brigitte was planning to blow something up. The Crown was not asserting any such things about Brigitte, of course, and the submission at trial and in this Court was that the material would have affected the minds of jurors and was of such a sensational nature as to divert them from their task of judging the issues on the evidence put before them at trial.

144 His Honour said this -

The arguments advanced by Mr Boulten SC on the s 137 point focussed on a very considerable body of media material collected by the defence team to demonstrate the excessive publicity generated by the presence of Willie Brigitte in Australia. It is essentially because of this material that Mr Boulten suggested the jury will “over estimate” and “over value” any evidence that mentions the name Willie Brigitte. The Crown responded to this argument by suggesting that any possible danger of misuse by the jury of the subject body of evidence could be adequately eradicated by appropriate directions from the court.

...

I turn now to consider the second argument raised by Mr Boulten SC. I have endeavoured to read the very significant body of material collected from media releases for the purposes of the argument. I also take into account that this is by no means the only media attention that would have been made in relation to Willie Brigitte at the time of his arrest and into the period of 2004 when the accused was himself arrested. I agree with Mr Boulten that many of the statements made in the press are simply examples of sensationalism that have no possible warrant in fact. Mr Boulten’s main argument is that the members of the jury may have seen some at least of this material and may recollect it so that any mention of Willie Brigitte will carry with it the possibility that whatever evidence is adduced at this trial will be misused I am unable to accept this submission.

First, it is now nearly two and a half years since Willie Brigitte was arrested and deported from Australia. While general impressions may remain in the minds of some members of the public, I am confident that detail will have been forgotten. Secondly, it is two years since the accused himself was arrested and, while there have been references to Willie Brigitte since that time in the media, there is no reason to suppose that the accused himself received the treatment that Brigitte did in the press. Thirdly, I agree with the Crown’s submissions that an appropriate direction to the jury will bring home to them a self evident matter, namely that they are to confine their attention to evidence about Brigitte that is presented in this trial. There may be other matters that ought be included in such a direction and I will, no doubt, be assisted in that regard by suggestions from both the Crown and the defence at the appropriate time.

145 The directions foreshadowed by his Honour were given in due course. His Honour said this during the summing-up -

It is important that you approach this task dispassionately, judging the facts of this case without emotion and confining yourself to the evidentiary material. It is always the duty of judges of fact to approach their task dispassionately and without emotion. You must carry out your task in this trial disassociating yourselves completely from the emotional response of other people in the community. You are the judges of the fact, others are not.

It is also very important to free your mind of prejudice and preconceptions. Everyone had prejudice, everyone has preconceptions. That should be recognised. Prejudice and preconception is no more than an attitude, a starting point from which we all make our judgments. In ordinary life, we make out judgments from starting points of that sort all the time; day in, day out. But this is not ordinary life. Here you are the judges. Judges of fact must free their minds from preconceived ideas and prejudices and must try the case according to law and according to evidence. Judges are expected to be impartial and independent, to be free from all outside influence. You must not fear, for example, any media criticism of what might occur in this trial. You must not bring about a verdict because you feel sorry for the accused or because you have any manner of racial prejudice or any other type of prejudice, including religious prejudice. Those types of considerations must be put aside altogether. They must be put aside completely.

Clearly, the question of terrorism and similar acts around the world has attracted high emotions, and people have strong views about the topic. But once again, I point out to you that you must leave those considerations aside and you must decide this case purely and solely upon the evidence which had unfolded before you.

The fact that you may have heard about terrorist acts elsewhere in the world, and indeed close to our country for that matter, and that the topic appears in the media on a regular basis, is something about which you need to take particular care. Those topics and that reporting might perhaps invite you to consider matters which are foreign to your task. You must resist that. For example, a number of years ago there was considerable publicity in the media about Willy Brigitte. You may have seen it at the time. If you did and you have any recollection of it, please put it out of your minds entirely for the purposes of this trial. I simply repeat that you should not bring to this trial and to your considerations of this case anything which involves feelings of prejudice, whether they be racial, religious, ideological or otherwise, or for that matter any form of emotional sympathy. Such matters would only distract you from your essential task. As judges you must rise above these kinds of considerations and at all times act dispassionately and impartially.

146 It was submitted that his Honour had not appreciated that the evidence showed that Brigitte had been a topic of discussion not simply at the time of his arrest and deportation but “continued to be so throughout (sic) the appellant’s trial”. Of course, his Honour was considering the objection at the beginning of the trial.

Deported French terror suspect Willie Brigitte was a significant threat to Australia and was almost certainly establishing a cell in Sydney to commit terrorist acts.

(iii) Court ruling a set back for terror case, Daily Telegraph, 14 April 2006:

Police allege Lodhi, 36, from Punchbowl, worked with French terrorist suspect Willie Brigitte.

(iv) David King, Suspect used fax at office to ‘plot’, The Australian, 25 April 2006:

Willie Brigitte

- French terrorism suspect who allegedly plotted to bomb the national electricity supply and Sydney military sites

- Expelled from Australia in 2003 on the grounds of visa irregularities

- Awaiting trial in France on a charge of associating with a terror organisation

148 It was submitted that publicity about Brigitte was not confined to the commercial and national news media, but that the record of debates in the Commonwealth Parliament contained serious assertions about Brigitte’s role and intentions. None was put before his Honour, however, and it seems doubtful whether such publicity could significantly add to what was demonstrated as a long and substantial course of publicity in the national news media, which would be far more likely than Hansard to bring itself to the attention of jurors.

149 It was submitted that his Honour’s observation that the appellant had not been treated as Brigitte had did not justify the decision to admit the evidence, and the implication was that his Honour had misunderstood the issue he was required to judge.

150 Finally, it was submitted that his Honour ought not have come to the view that the problem could be solved by giving the jury a firm direction, since no direction that could have been given was capable of removing the risk of unfair prejudice.

151 I do not think that his Honour misunderstood the nature of the inquiry he was required to make. His Honour’s references to the law were appropriate and his summary of the test correct. His Honour’s observation about the relative positions of Brigitte and the appellant put into context the inquiry at hand.

152 The risk to which the appellant was pointing – that the jury might overvalue the evidence about Brigitte – was not one that could be precisely described or evaluated. It had to be assessed, insofar as it could be assessed, in the context of a criminal trial in which the appellant, not Brigitte, was being accused of some very serious offences.

153 In my opinion his Honour was correct in concluding that any risk of unfair prejudice would be removed by firm directions. His Honour was entitled to expect that the jury would follow those directions. In The Queen v Glennon [1992] HCA 16; (1992) 173 CLR 592, Mason CJ and Toohey J said at 603 -

The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence. As Toohey J observed in Hinch, in the past too little weight may have been given to the capacity of jurors to assess critically what they see and hear and their ability to reach their decisions by reference to the evidence before them. In Murphy v R, we stated:

But it is misleading to think that, because a juror has heard something of the circumstances giving rise to the trial, the accused has lost the opportunity of an indifferent jury. The matter was put this way by the Ontario Court of Appeal in R v Hubbert:

‘'In this era of rapid dissemination of news by the various media, it would be naive to think that in the case of a crime involving considerable notoriety, it would be possible to select 12 jurors who had not heard anything about the case. Prior information about a case, and even the holding of a tentative opinion about it, does not make partial a juror sworn to render a true verdict according to the evidence.”

To conclude otherwise is to underrate the integrity of the system of trial by jury and the effect on the jury of the instructions given by the trial judge.

(footnotes omitted)

154 In my opinion his Honour’s assessment was open and his remarks disclose no error.

The identification of Brigitte

155 There was abundant evidence that the appellant had associated with Brigitte. There was unchallengeable evidence that a man calling himself Salahudin had undergone terrorist training in Pakistan. The link between those bodies of evidence was Kwon’s identification of Brigitte’s photograph as of Salahudin. Kwon purported to identify such a photograph on two occasions and the Crown tendered evidence of them both. It was submitted at trial that the probative value of the evidence was outweighed by the danger of unfair prejudice: Evidence Act s137. It was also submitted, relying on s138 of the Act, that the evidence had been obtained improperly or in contravention of an Australian law or in consequence thereof, and the desirability of admitting it did not outweigh the undesirability of admitting evidence obtained in the way it had been obtained. His Honour held that the evidence had not been obtained improperly or in contravention of any Australian law and that its probative value was not outweighed by the danger of unfair prejudice to the appellant.

156 Kwon was a citizen of the United States of America who, in 2001 at the suggestion of his teachers, travelled to Pakistan in the hope of gaining entry to a Lashkar-e-Taiba training camp. Eventually he arrived at a camp called Camp Masada and entered training there. There were to be three phases of training. The first and the first part of the second would be held at that camp. The second part of the second phase would be held at a different camp at higher altitude. Kwon completed the first phase and entered the second. A few days into that phase, a man called Salahudin arrived and joined the group as a trainee. There were at that stage about seven trainees. They did all their training together. They were accommodated in the same place. They slept in the same dormitory, ate together and prayed together. They had discussions together. Kwon, Salahudin and the others completed the first part of the second phase and moved to the higher camp. The course there lasted for between twenty and twenty-five days. As before, everything was done together and all the participants lived closely together. Kwon had a lot of individual conversations with Salahudin, who told him something of his background in France and his history as a teacher. Neither went on to the third phase of the program but both travelled in company to a town called Muridke, where they waited some weeks for further instructions. From there they went in different directions and Kwon has not seen Salahudin since those days.

157 Kwon spent some time in South Korea, where FBI agents got in touch with him. Eventually he was returned to the Unites States of America and faced, first, passport violation charges and then much more serious charges, alleging that he had conspired to provide support to al-Qaeda and the Taliban for the purpose of fighting against United States troops in Afghanistan and an intention to take up arms against his own country’s troops. At least one of the charges attracted a maximum sentence of imprisonment for life. He was also charged with a number of firearms offences. He entered a plea bargain with United States prosecutors with a number of results and consequences. The resulting sentence was imprisonment for eleven and one-half years, but with the prospect of bringing what was called a Rule 35 motion to reduce his sentence. The bones of the arrangement appear to be these. In acknowledgment of the sentence I have mentioned Kwon was to give assistance to the United States investigating authorities, and that required him to do a number of things, including giving evidence in prosecutions in the United States and elsewhere. If he did give truthful evidence as promised, and if he otherwise fulfilled the terms of the arrangement, he would have the opportunity to come back before the sentencing judge under the arrangement I have mentioned and ask for a reduction in sentence. The plan was put into action. Kwon gave evidence in a number of matters, two prosecutions in the United States and one in the United Kingdom. He was taken back before the sentencing judge under Rule 35 and his sentence was reduced. By the time he came to give evidence in the appellant’s case he had already reached the end of the custodial portion of his reduced sentence and was serving a period of three years on probation.

158 On 26 November 2003, while he was still serving the custodial part of his sentence, Kwon found himself in a gaol in Alexandria, Virginia. On 26 November 2003 he was taken to the nearby police station and placed in an interview room. There he received a visit from two FBI agents, Mr Mamula and Mr Ammerman. His Honour heard evidence from Kwon, Mamula, Ammerman and an ASIO officer who was referred to as AO1. His Honour’s findings may be summarised thus.

159 On 5 November 2003 the ASIO officer gave an officer of the FBI a photograph of Brigitte, as part of a briefing to try to find out what the FBI knew about Lashkar-e-Taiba or Brigitte. At that time ASIO suspected that Brigitte had been involved with Lashkar-e-Taiba. On 20 November 2003 an ASIO agent gave an FBI agent a photograph of Brigitte, a photograph of the accused and one photograph of another person. The photographs were handed over with the intention of gaining access to Kwon and another man in order to interview them. The ASIO officer told his correspondent that he would if possible ask Kwon and the other man if he could identify anybody in the photographs. He took the photographs to the meeting in the interests of accurate intelligence and not to preserve any subsequent police activity. He did not tell the FBI agent not to show the photographs to anybody before ASIO came to the interview. On 26 November 2003 Ammerman was in the interview room with Kwon and his solicitor before anyone from ASIO spoke to him. He showed Kwon four photographs, one of Brigitte, two of the appellant and one of the appellant’s brother. Kwon recognised the person in the first photograph as the man Salahudin, someone he knew from his attendance at the training camp. Agent Ammerman left the interview room and met the ASIO officer. He brought him back to the interview room and an interview took place. The ASIO officer showed Kwon a folder containing twelve photographs, some described as passport-type and others of people taken in public places. Some were in colour and some in black and white. Each photograph showed one man. One of the colour photographs was of Brigitte. There were two photographs of the appellant. He showed Kwon the photographs one at a time and invited him to say whether he could recognise any of the people shown in them. The only person Kwon recognised was the person he named as Salahudin. As he did so, Kwon told the ASIO officer that that was the French person he had told him about.

160 There existed at the time a document called Legal Handbook for Special Agents, issued to FBI agents, which contained guidelines about the procedures that should be adopted when showing photographs of suspects to witnesses. His Honour accepted the evidence of agents Mamula and Ammerman to the effect that when they showed the photographs to Kwon they were not investigating the possible involvement of a person in a crime. That, his Honour was satisfied, was a precondition to the application of the guidelines. His Honour was satisfied, on the evidence of Agent Ammerman, that what they were doing was more in the context of assistance to a friendly foreign nation. His Honour was satisfied that the American agency was making Kwon available to ASIO so that it could ask him whether he could identify any person he had trained with in 2001 in Pakistan. Although the approach was unusual, showing photographs to Kwon before the arrival of the ASIO officer, his Honour accepted that what Ammerman was doing was essentially assisting the Australian government in an intelligence gathering operation. Although the information obtained might have been of some interest to the FBI itself, that was not the purpose of the operation. As the agents were not investigating the possible involvement of any persons in the photograph in a crime, the guidelines did not apply. The opinion of either of the agents whether they did apply (one thought they did, the other not) was irrelevant.

161 Mr Boulten submitted to his Honour that if the evidence was not obtained in contravention of FBI guidelines or of any Australian law, it was improperly obtained, so s138 applied. No authority could be cited supporting that application. His Honour held that there was no impropriety. His Honour referred to the judgments of Adams J in Director of Public Prosecutions v Coe [2003] NSWSC 363 and of Howie J in Regina v Richard Bruce Cornwell, 20 February 2003, unreported.

162 Having found that there was no impropriety and no illegality, his Honour, for more abundant caution, went on to make the kinds of findings s138 would have required. He considered the probative value of the evidence reasonably high and the evidence important to the Crown case, being the only evidence that directly placed Brigitte in a Lashkar-e-Taiba training camp. The offences charged were very serious and carried significant penalties. If the procedures adopted breached FBI guidelines or were otherwise improper, the breaches or improprieties were not deliberate or reckless, but done as part of the process of sharing intelligence with a friendly foreign country. Nothing happened in either the first interview with the FBI agents or with the subsequent interview with the ASIO officer that suggested to Kwon that he should or was bound to identify any particular person to be shown to him. The actions of Agent Ammerman were not designed to be unfair. On the contrary, his Honour considered his procedure appropriate.

163 His Honour went on to consider whether the evidence should be excluded under s137. The Evidence Act 1995 has nothing to say about evidence of identification of any person other than a defendant. Mr Boulten relied on the Common Law position as set forth in a passage of the judgment of Gibbs CJ in Alexander v The Queen [1981] HCA 17; (1979-1980) 145 CLR 395 at 400, dealing with unfairness in the process of identification of an accused person by photograph shown by the police. His Honour observed, however, that there were important distinctions to be made. First, Gibbs CJ was, strictly speaking, dealing with identification, not recognition, evidence, that is evidence about a person not previously known to the witness. Secondly, his Honour was dealing with the identification of a person accused of a crime, rather than, as in the present case, with the recognition of a third party. Thirdly, his Honour did not deny the need to weigh and compare probative value and the risk of unfair prejudice.

164 Whealy J proceeded to make that comparison. His Honour rehearsed the long period of time, somewhere between three and four weeks, during which Kwon and Salahudin had been in each other’s presence, training together, sleeping in the same dormitory, participating in daily religious sessions, and the like. After their training was over, they travelled together to Lahore and then to the place where they waited. They travelled in the same vehicle and stayed in the same premises. They stayed there for about three weeks. They spoke to one another during travel and during their stay as they waited. His Honour observed that this was no idle acquaintanceship but one in which a reasonably strong bond would have been forged. There was the nature of the training itself, including its ideological and religious basis, which would have cemented the relationship. His Honour considered it significant that Kwon had immediately identified, that is, recognised, the photograph of the man he knew as Salahudin.

165 His Honour acknowledged the attack Mr Boulten had made upon Kwon’s credibility. He had demonstrated that in cross-examination Kwon had not always told the whole truth when giving evidence. His Honour considered that such matters could not lead to the exclusion of the evidence but were for the jury to consider. His Honour noted that there was no indication to Kwon that he had to identify the photograph of Brigitte. His Honour rejected a submission that there was any significance in the fact that the FBI agents had not made notes of the conference proceedings. His Honour rejected the submission that the proceedings in which the ASIO officer showed Kwon twelve photographs was “a complete sham”.

166 His Honour concluded that evidence of both identifications was relevant and of “quite high probative value”. His Honour did not consider that the unusual features he had identified affected the value of the evidence of recognition by Kwon of Salahudin so as to reduce its probative value significantly. His Honour considered that there was no likelihood that the jury might misuse the evidence, given suitable directions. His Honour expressed himself satisfied that the probative value of the evidence was not outweighed by the danger of unfair prejudice to the appellant.

167 In this Court Mr Boulten pointed to some of the requirements of ss3ZO and 3ZP Crimes Act 1914 (Commonwealth), which prescribe procedures that police constables must follow. If constables show photographs to a witness to obtain evidence of identification of a suspect they must show photographs of at least nine different persons. Each photograph not of the suspect must be of a person who resembles the suspect in age and general appearance and lacks features markedly different from those described by the witness before looking at the photographs. The photographs must not appear to be of persons in police custody. Police constables should not suggest to a witness that a particular photograph is of the suspect. The witness must be told that there may be no photograph of the suspect among those being shown. Constables must keep records identifying each photograph shown to the witness.

168 Mr Boulten pointed also to the FBI guidelines, which provide that except where it is impracticable a suspect’s photograph shown should be in a group of at least five other photographs. There should be a reasonable attempt in using photographs of persons other than the suspect to see that they resemble the suspect. The prints of the several photographs should not be dissimilar. Photographs should not indicate that persons shown in them are guilty of criminal misconduct. If “mug shots” are the only photographs available, number boards should be masked.

169 Of course, none of these requirements applied to the procedure in which Kwon identified a photograph of the man Salahudin in the presence of the ASIO agent. He was not a constable. The person he was trying to identify was not a suspect. The FBI guidelines did not apply either because, as his Honour concluded, the agents were not trying to identify a suspect. They were not conducting a criminal investigation at all, but assisting a friendly foreign nation. Even so, Mr Boulten called these provisions in aid as indicating the sorts of measures that should be employed to ensure that any important identification by photograph is carried out in a way that avoids the difficulties inherent in such a process, so as to tend to produce a reliable result. Ultimately the submission was that the probative value of the evidence of identification of the photograph of Brigitte was unreliable because of the circumstances in which it had been made, first in the presence of the two FBI agents and then in the presence of them and the ASIO agent.

170 Mr Boulten cited a number of United States cases on the guidelines and drew attention to the small number of photographs shown by the FBI agents – four photographs of three people. Mr Boulten referred to R v Dwyer [1925] 2 KB 799 and to the need for caution where the evidence is that only one photograph was shown. It was submitted that his Honour failed to consider the difficulties inherent in the procedures employed by the FBI agents, which were apt to produce unreliable results because Kwon, who was prepared to tell lies when it suited him, was placed in a position in which he was likely to tell a lie. He was obliged to give assistance to the FBI. The consequences of not doing so would be grave. Kwon was likely to believe that at least one of the three men shown in the photographs was a suspect and that the agents wanted the assistance of evidence against that man. He was therefore likely to say what he thought the agents might like to hear.

171 In deciding whether to include the evidence, his Honour said this -

Mr Boulten SC relied in particular on a passage in the judgment of Gibbs CJ in Alexander’s case [1981] HCA 17; (1981) 145 CLR 395 at 400. I have set this out in my earlier judgment and there is no need to repeat it here. But, in my view, there are a number of important distinctions to be made. First, Gibbs CJ was, strictly speaking, dealing with identification rather than recognition of a person known to the witness. Secondly, he was dealing with the identification of a person accused of committing a crime rather than, as here, with the recognition of a third party. Thirdly, Gibbs CJ did not deny the existence of and the need to exercise a weighing exercise of probative value on the one hand, and the risk of unfair prejudice on the other. This exercise requires an evaluation of the circumstances.

In those circumstances, I turn to consider issues related to the probative value of both “identifications” and considerations as to the risk of unfair prejudice to the accused in the trial. Although the question of the probative value of evidence is generally a matter for the jury, the present exercise requires the Court to determine whether the probative value of the evidence is or is not outweighed by the danger of unfair prejudice to the defendant.

At the outset, it is important, indeed critical, to note that there was a relatively extensive relationship between the man Kwon and Salahudin. Kwon said he first met Salahudin when the latter joined the early stages of phase 2 training at the LeT camp (T 965 line 35 and following). Salahudin remained in the group for the balance of the training period. This would indicate that the two men trained together for a period of somewhere between three and four weeks. During that period, Kwon trained with Salahudin every day (T 965 lines 50-55); he spoke to him on a daily basis (T 966 line 8) and slept in the same dormitory each night (T 965 line 57). In addition, Mr Kwon said he observed Salahudin participating in daily religious sessions (T 966 line 20 and following).

When their training was completed, the group (including Kwon and Salahudin) left the training camp. They travelled back to the LeT office in Lahore and then went on to Muridke. During the course of these travels, Kwon travelled in the same vehicle as Salahudin and stayed in the same premises in Muridke (T 967 line 45). They stayed at these premises for a period of approximately three weeks. They conserved in the course of travelling and during their stay at Muridke.

It seems to me that it is inescapable to conclude other than that Kwon and Salahudin were in close to proximity to one another for a reasonable extensive period of time and in circumstances where Kwon was likely to have become quite familiar with Salahudibn both as to his appearance and general characteristics. This was no idle acquaintanceship but one in which a reasonably strong bond would have been forged between the two men. The very nature of the training itself, including its ideological and religious basis, would have cemented the relationship.

The second matter that I consider of significance is that Kwon identified Salahudin immediately he was shown the four photographs by the FBI Agents. Similarly, when he was shown 12 photographs by the ASIO officer, he had not the slightest difficulty in making the recognition of the man he had met at the training camp. He recognised him “immediately” (T971 line 25). By contract, he did not recognise any of the others.

I am conscious of the fact that Mr Boulten SC has made a significant attack upon the credibility and reliability of the witness Kwon. He described these features as “worrying”. The particular matters stressed were -

(a) The witness was not always truthful.

(b) The witness was often quite deceptive and admittedly so.

(c) Overtime, he had provided “incremental admissions” to the FBI. He “bluffed it out” for a period of time by denying things and inventing situations, which were to his knowledge untrue. He would only admit a fact if he thought that FBI knew about it. This manner of providing information continued will into his relationship with the FBI.

(d) The witness was shown photos by the FBI from time to time. He was prepared to do what the FBI told him to do, including telling lies in the phone in an endeavour to “trap” his co-defendants.

(e) The witness had at all times up to and including late 2003 a powerful motive to tell the FBI what they wanted to hear – this connotes “an extraordinary degree of suggestibility” to tell the FBI what they want to hear.

Mr Boulten SC connects these assertions, a number of which are undoubtedly correct, to make a forceful submission that the identification of Salahudin in the photos shown by the FBI agents was of no value whatsoever. Showing one photo to Kwon was very suggestive of the result the agents wanted to receive especially where the relationship between the witness and the FBI was of “a special kind”. In other words, Mr Boulten submitted that the witness was “unduly responsive to signals”.

My view is that, while these matters are obviously of great significance in relation to the issue of credibility and reliability of the witness, they ought not and cannot lead to the exclusion of the evidence. I have examined this aspect of the matter in my previous decision and I remain of the view that merely because a witness appears to be lacking in credibility or unreliable, even to a large extent, is no basis for the trial judge to exclude the evidence. Issues such as the credibility and reliability of a witness are, subject to appropriate directions being given, matters entirely for the jury. For this reason essentially, I am unable to accept Mr Boulten’s submissions on this point.

172 On appeal, Mr Boulten attacked his Honour’s conclusion that the question whether Kwon was to be believed was one exclusively for the jury and incapable to leading to the rejection of the evidence.

173 In my opinion the attack fails. The submissions at trial and in this Court attempted to run together, as though they could potentiate one another in the mind of the trial judge, two disparate criticisms of the evidence. The first related to the risk that an honest witness who identifies someone may be mistaken. It is in recognition of that risk that the courts urge caution in assessing identification evidence. That has nothing to do with the second criticism, namely the risk that a witness may deliberately lie because of some perceived obligation to assist the authorities.

174 The manner in which photographs are put before an honest witness is important because of the need to prevent honest mistakes. So guidelines and, sometimes, statutes deal with the quality and quantity of photographs to be shown and the circumstances in which they are shown. So there is a general requirement that witnesses be told not to make assumptions about the photographs. So a process may properly be criticised, as it was here, by reference to the small number of photographs shown and to the fact that Kwon was not told that they might not include anyone he might recognise. The process was capable of criticism, too, because no attempt appears to be made to have Kwon record a description of Salahudin before he was shown any photograph. But it was not open to extend that legitimate criticism by eliding questions about Kwon’s credibility. The attempt to do so was made in the face of the Court’s judgment in R v Shamouil [2006] NSWCCA 112, a fact Mr Boulten acknowledged. In that case Spigelman CJ reviewed the pre-Evidence Act and post-Evidence Act cases on the question whether assessment of the probative value of evidence required consideration of its reliability. His Honour concluded that the test for rationality was concerned with what it was open for the Tribunal of fact to conclude, not with what it was likely to conclude: judgment at [48] – [68]. The other members of the Court agreed.

175 Mr Boulten made two submissions about R v Shamouil. First, it was submitted that this was one of the exceptional cases spoken of in which it was simply not open to the jury to give weight to the evidence: see the judgment of Spigelman CJ at [56], referring to the judgment of Simpson J in R v Cook [2004] NSWCCA 52 at [43].

176 In my opinion this is not a case in which his Honour was bound to weigh the credit of Kwon, much less to conclude that it was incapable of belief. The questions of the credit of Kwon and the dangers associated with identification by photograph were not “inextricably entwined”, to use Simpson J’s words. His Honour would have usurped the jury’s function if he had assessed the credibility of Kwon.

177 Mr Boulten’s alternative submission was that this Court should not follow R v Shamouil because it was wrong. No authority was put before the Court that was not considered in Shamouil itself. In my respectful opinion the judgment was right. This Court should follow it.

178 In assessing the probative value of the evidence his Honour said this -

The evidence of Mr Kwon in relation to his recognition of the man Salahudin both to the FBI agents and to the ASIO officer appear to me to possess a high degree of probative value. This is because of the relationship between the two men and the fact that the witness purported to recognise a person he had trained with over a reasonably substantial period of time. I do not accept that the matters that transpired between Agent Ammerman and Kwon in the pre-interview indicate that any suggestion was made to Kwon that he had to identify the photo of Willie Brigitte. While it is true that no record was kept of what was said at this meeting either by Ammerman or by Kwon, I consider that I am entitled to infer that he was simply asked whether he recognised any of the people in the four photos he was shown. While it is true also that Kwon himself has no recollection of having seen these photographs, he readily accepted that he may well have seen them. Moreover, his recall of recognising Salahudin’s photograph when it was shown to him by the ASIO officer is at least consistent with the earlier recognition, even though he does not recall it.

In this context, I do not accept Mr Boulten’s further submission that what happened in the interview room when the ASIO officer produced the 12 photographs was “a complete sham”. Since the earlier process during the pre-interview required the witness to recognise a person he knew reasonably well, the subsequent recognition falls into the same category. I accept that it was hardly a surprising result and this may be pointed out to the jury in relation to any directions that need to be given. It is of course possible that Kwon was mistaken when he recognised the person in the photo as Salahudin. It is possible there was some degree of displacement although I do not consider the evidence placed this possibility particularly high. If one acts on the assumption that Kwon was acting truthfully and in accordance with his own memory then the sting in the submission is much less. On the other hand, if the jury were to take the view that the witness is not truthful and that he was acting at the suggestion of the FBI agents, they would give little weight to his purported of recognition. Appropriate directions, in my view, will enable the jury to neither over estimate the identification nor under estimate the matters, which Mr Boulten says, weaken the probative of the evidence.

It must be stressed that recognition of a person known to a witness does not fall into an absolute category. The extent of the relationship and the depth of the knowledge of a person will vary from one relationship to another. In that context, I accept that the directions may be given to a jury, which, in an appropriate case, will highlight to the jury that there are dangers even where the situation is one of recognition rather than identification of a stranger. (See R v Bentley (1991) Crim LR 620 per Lord Lane CJ at 621). But the distinction between recognition and identification is one that has a particular relevance in the factual situation arising in the present matter.

I consider that the evidence of both identifications plainly is relevant and of quite high probative value. Notwithstanding the unusual features that have been revealed by the evidence, I do not think that these affect the value of the evidence of recognition by Kwon of Salahudin so as to reduce significantly that probative value. Whether the jury accept the evidence and regard it as either credible or reliable is another matter and not one upon which I can or should base an order for exclusion. The evidence is plainly closely connected with one of the principal issues in the proceedings although it is not the only evidence upon which the Crown relies. It can properly be taken into account in the context of the evidence as a whole (R v Tugaga (1994) 74 A Crim R 190 at 196). Moreover, I do not think that there is any likelihood of the jury misusing the evidence and, subject to suitable directions, any risk that the jury might over value the identification or under estimate the capacity for mistake can be effectively dealt with. I am satisfied that the probative value of the evidence is not outweighed by the danger of unfair prejudice to the defendant.

179 Mr Boulten submitted that his Honour erred in attributing significant probative value to the evidence. He began with a concession that this was evidence of recognition rather than of identification. Nonetheless, it was submitted, his Honour overemphasised the importance of the “purported interaction” between Kwon and Brigitte, was “overly influenced” by the decisiveness of Kwon’s identification and relied on the fact that Kwon did not recognise any other person whose photograph he was shown. Finally, no description of Salahudin was recorded before Kwon was shown the photographs.

180 I do not think that it can be concluded that his Honour overemphasised the importance of the circumstances in which Kwon had come to know Salahudin. They were remarkable and crucial to the process of identification. Really, the submission that his Honour overemphasised these matters would be available only by inference from a conclusion that the identification was mistaken.

181 The second submission related to this portion of his Honour’s judgment -

The second matter that I consider of significance is that Kwon identified Salahudin immediately he was shown the four photographs by the FBI Agents. Similarly, when he was shown 12 photographs by the ASIO officer, he had not the slightest difficulty in making the recognition of the man he had met at the training camp. He recognised him “immediately” (T971 line 25). By contract, he did not recognise any of the others.

182 It seems to me that his Honour was entitled to have regard to the immediacy of Kwon’s recognition of Salahudin in considering the fairness or otherwise of the process that was under attack.

183 The third submission related to the last sentence of the paragraph I have extracted. It seems to me that his Honour was not relying upon Kwon’s identification of Brigitte but on the fact that he could not identify anyone else. It was legitimate for his Honour to do so in assessing the submission that the process was flawed and that Kwon was likely to say anything he thought the agents might like to hear.

184 It is correct to say that unfairness resulting from the risks of identification evidence can be reduced if witnesses are required, before being shown any photograph, to describe a person they have in mind. It is not altogether clear that such a thing could have been done in the present case, but plainly it did not happen. The fact was not lost on his Honour, however, and it was not determinative in the assessment of probative value.

185 It seems to me that his Honour correctly concluded that the evidence was relevant. His Honour was entitled to conclude that the probative value of the evidence was “quite high”, and that there was no likelihood that the jury would misuse it. His Honour was correct in concluding that suitable directions could be given to the jury to enable them to understand the risks inherent in identification by photograph.

186 These grounds of appeal have not been made good.

187 The fifth ground of appeal is as follows -

A miscarriage of justice resulted from the absence at trial of fresh evidence concerning the identification of Brigitte

188 After the conclusion of the appellant’s trial Kwon was giving evidence on 14 March 2007 in committal proceedings in the Local Court at Penrith. The defendant was a man called Hasan. There were these questions and answers -

Q Is there some reason why the French guy sticks in your mind more than Abu Asad – do you see what I am getting at there?

A Yes. Because I remember I think when the – one of the FBI agents – well, there’s always two, actually. I think they questioned me shortly before or shortly after the [redacted] guy came, and they even told me, like, the French guy’s real name, which I didn’t know until that, at that point, and that, you know, that he wasn’t – he was in some big trouble in France and his case was pretty big. So I remember Salahudin clearly, but as far as Abu Asad, I don’t recall...

189 It was submitted that the evidence was fresh, because it was unavailable at trial. So much may be accepted.

190 Kwon said at trial that he could not recall the identification procedure. Agents Ammerman and Mamula both said that they did not speak to Kwon about Brigitte, though the context of their answers was the introduction to the identification procedure; nobody at trial had any interest in asking either of the agents what he might have said to Kwon after he had identified Brigitte’s photograph.

191 It was submitted that if evidence had been available there would have been two consequences at the trial. First, the evidence would have undermined that of Kwon, Ammerman and Mamula and their credibility. Secondly, the information imparted to Kwon would have exacerbated the displacement effect, making all subsequent procedures worthless. It was submitted that if the jury had had the fresh evidence they “would in all likelihood have rejected Kwon’s uncorroborated evidence that Brigitte trained” with Lashkar-e-Taiba. Without that evidence there was no evidence capable of establishing that the association between Brigitte and the appellant was anything but innocent, and the appellant had consequently been deprived of a real chance of acquittal.

192 It is known that the FBI agents spoke to Kwon before they showed him photographs and between that event and the showing of photographs by the ASIO agent. It seems fair to suppose that they spoke to him afterwards as well, and if they did they may well have said something about Brigitte. It is therefore far from clear that in his answer in the Local Court Kwon was speaking about something that happened before or after either or both of the acts of identification. Mr Boulten’s response to this observation was to say that if the evidence had been available at trial it could have been explored in cross-examination of Kwon, Ammerman and Mamula. As it turned out, the chance was lost, and so was a chance of acquittal.

193 There is no doubt that if this material had been available at trial counsel would have been able to use it to cross-examine Kwon, Ammerman and Mamula. However, there is considerable doubt whether it could have been thereby established that anything was said at a time when it could have affected the process of identification. On its face, the evidence is not inconsistent with anything that Kwon, Ammerman or Mamula said at trial.

194 When dealing with a ground of appeal based on fresh evidence, the Court is concerned to decide whether the absence of the evidence from the trial has occasioned a miscarriage of justice. That question has to be answered in the context of all the evidence given at trial. In Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, Toohey and Gaudron said this at 301 -

There is no very precise formulation of the quality which must attach to fresh evidence before it will ground a successful appeal. It has been said that it must be "credible", "cogent", "relevant", "plausible": see, for example, Gallagher, at pp 395-396, 401-402, 408-409; Craig v. The King [1933] HCA 41; (1933) 49 CLR 429, at p 439; Ratten, at pp 519-520; Lawless, at pp 671, 676-677. In essence, the fresh evidence must be such that, when viewed in combination with the evidence given at trial, it can be said that the jury would have been likely to entertain a reasonable doubt about the guilt of the accused if all the evidence had been before it (Gallagher, per Brennan J. at p 410) or, if there be a practical difference, that there is "a significant possibility that the jury, acting reasonably, would have acquitted the (accused)" (Gallagher, per Gibbs C.J. at p 399 and per Mason and Deane JJ. at p 402).

(footnotes omitted)

195 In my opinion the evidence fails to pass the test for cogency. All that was lost was a chance to cross-examine and thereby possibly introduce evidence which might have proved relevant and might have borne on the integrity of the identification process. In my opinion the Court should not receive the evidence. I would reject this ground of appeal.

196 The sixth ground of appeal is as follows -

His Honour erred in refusing the appellant’s application for directed verdicts at the conclusion of the Crown case.

197 At the close of the Crown case the appellant applied for an order directing a verdict of not guilty on all four counts. His Honour refused the application.

198 The first count was laid under s101.5 of the Commonwealth Criminal Code, which provides -

101.5 Collecting or making documents likely to facilitate terrorist acts

(1) A person commits an offence if:

(a) the person collects or makes a document; and

(b) the document is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and

(c) the person mentioned in paragraph (a) knows of the connection described in paragraph (b).

Penalty: Imprisonment for 15 years.

(2) A person commits an offence if:

(a) the person collects or makes a document; and

(b) the document is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and

(c) the person mentioned in paragraph (a) is reckless as to the existence of the connection described in paragraph (b).

Penalty: Imprisonment for 10 years

.

(3) A person commits an offence under subsection (1) or (2) even if:

(a) the terrorist act does not occur; or

(b) the document is not connected with preparation for, the engagement of a person in, or assistance in a specific terrorist act; or

(c) the document is connected with preparation for, the engagement of a person in, or assistance in more than one terrorist act.

(5) Subsections (1) and (2) do not apply if the collection or making of the document was not intended to facilitate preparation for, the engagement of a person in, or assistance in a terrorist act.

Note: A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3)).

(6) If, in a prosecution for an offence (the prosecuted offence) against a subsection of this section, the trier of fact is not satisfied that the defendant is guilty of the offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence (the alternative offence) against another subsection of this section, the trier of fact may find the defendant not guilty of the prosecuted offence but guilty of the alternative offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

199 The second count was laid under s101.6 -

101.6 Other acts done in preparation for, or planning, terrorist acts

(1) A person commits an offence if the person does any act in preparation for, or planning, a terrorist act.

Penalty: Imprisonment for life.

(2) A person commits an offence under subsection (1) even if:

(a) the terrorist act does not occur; or

(b) the person’s act is not done in preparation for, or planning, a specific terrorist act; or

(c) the person’s act is done in preparation for, or planning, more than one terrorist act.

(5) Subsections (1) and (2) do not apply if the possession of the thing was not intended to facilitate preparation for, the engagement of a person in, or assistance in a terrorist act.

Note: A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3)).

(6) If, in a prosecution for an offence (the prosecuted offence) against a subsection of this section, the trier of fact is not satisfied that the defendant is guilty of the offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence (the alternative offence) against another subsection of this section, the trier of fact may find the defendant not guilty of the prosecuted offence but guilty of the alternative offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

201 “Terrorist act” is defined in s100.1 of the Code thus -

terrorist act means an action or threat of action where:

(a) the action falls within subsection (2) and does not fall within subsection (3); and

(b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and

(c) the action is done or the threat is made with the intention of:

(i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or

(ii) intimidating the public or a section of the public.

202 s100.4 is as follows -

100.4 Application of provisions

Part generally applies to all terrorist acts and preliminary acts

(1) Subject to subsection (4), this Part applies to the following conduct:

(a) all actions or threats of action that constitute terrorist acts (no matter where the action occurs, the threat is made or the action, if carried out, would occur);

(b) all actions (preliminary acts) that relate to terrorist acts but do not themselves constitute terrorist acts (no matter where the preliminary acts occur and no matter where the terrorist acts to which they relate occur or would occur).

Note: See the following provisions:

(a) subsection 101.1(2);

(b) subsection 101.2(4);

(c) subsection 101.4(4);

(d) subsection 101.5(4);

(e) subsection 101.6(3);

(f) section 102.9.

Operation in relation to terrorist acts and preliminary acts occurring in a State that is not a referring State

(2) Subsections (4) and (5) apply to conduct if the conduct is itself a terrorist act and:

(a) the terrorist act consists of an action and the action occurs in a State that is not a referring State; or

(b) the terrorist act consists of a threat of action and the threat is made in a State that is not a referring State.

(3) Subsections (4) and (5) also apply to conduct if the conduct is a preliminary act that occurs in a State that is not a referring State and:

(a) the terrorist act to which the preliminary act relates consists of an action and the action occurs, or would occur, in a State that is not a referring State; or

(b) the terrorist act to which the preliminary act relates consists of a threat of action and the threat is made, or would be made, in a State that is not a referring State.

(4) Notwithstanding any other provision in this Part, this Part applies to the conduct only to the extent to which the Parliament has power to legislate in relation to:

(a) if the conduct is itself a terrorist act—the action or threat of action that constitutes the terrorist act; or

(b) if the conduct is a preliminary act—the action or threat of action that constitutes the terrorist act to which the preliminary act relates.

(5) Without limiting the generality of subsection (4), this Part applies to the action or threat of action if:

(a) the action affects, or if carried out would affect, the interests of:

(i) the Commonwealth; or

(ii) an authority of the Commonwealth; or

(iii) a constitutional corporation; or

(b) the threat is made to:

(i) the Commonwealth; or

(ii) an authority of the Commonwealth; or

(iii) a constitutional corporation; or

(c) the action is carried out by, or the threat is made by, a constitutional corporation; or

(d) the action takes place, or if carried out would take place, in a Commonwealth place; or

(e) the threat is made in a Commonwealth place; or

(f) the action involves, or if carried out would involve, the use of a postal service or other like service; or

(g) the threat is made using a postal or other like service; or

(h) the action involves, or if carried out would involve, the use of an electronic communication; or

(i) the threat is made using an electronic communication; or

(j) the action disrupts, or if carried out would disrupt, trade or commerce:

(i) between Australia and places outside Australia; or

(ii) among the States; or

(iii) within a Territory, between a State and a Territory or between 2 Territories; or

(k) the action disrupts, or if carried out would disrupt:

(i) banking (other than State banking not extending beyond the limits of the State concerned); or

(ii) insurance (other than State insurance not extending beyond the limits of the State concerned); or

(l) the action is, or if carried out would be, an action in relation to which the Commonwealth is obliged to create an offence under international law; or

(m) the threat is one in relation to which the Commonwealth is obliged to create an offence under international law.

(6) To avoid doubt, subsections (2) and (3) apply to a State that is not a referring State at a particular time even if no State is a referring State at that time.

203 The point in the application was this. By the terms of the Code and the manner in which the counts were pleaded in the indictment, the collection of documents referred to in the first count had to be connected with preparation for a terrorist act, the seeking of information referred to in the second count had to be done in preparation for a terrorist act and the possession of the thing referred to in the fourth count had to be connected with preparation for a terrorist act. It was submitted that it was necessary for the Crown to prove that someone, whether or not that person was the appellant, had the intention relevant to each event at the time of the event. The submissions were summarised in this way in a judgment delivered by his Honour on 17 May 2006 -

The following ultimate submissions were made: -

(a) In respect of counts 1, 3 and 4, the Crown is unable to prove that the acts allegedly committed by the accused were connected with preparation for a terrorist act;

(b) In relation to count 2, the Crown has failed to prove that the act allegedly committed by the accused was in preparation for a terrorist act; and

(c) In respect of counts 1 and 3, the Crown has failed to establish mens rea concurrent with the actus reus.

The starting point of the accused’s submissions in relation to grounds (a) and (b) is the Crown’s continued position in the trial that the accused by the end of October 2003 had not yet finally decided on the precise nature of any terrorist attack; nor had he been perhaps close to determining finally a precise target or targets; nor precisely had he determined who was to carry out the attack or attacks or precisely when or precisely how.

The simple point made on behalf of the accused is this: in a prosecution for the present offences where it is not alleged that it was the accused himself who was to carry out the ultimate terrorist acts, it is necessary for the Crown to adduce evidence of the motivation of the person who was in fact to carry out those attacks. Without such evidence, the Crown cannot succeed on counts 1, 2 3, and 4. Accordingly a directed verdict should be entered.

The third argument, that set out in (c) above, proceeds on the basis that, in relation to counts 1 and 3, the Crown case is that the accused was the person who sought to carry out the terrorist act himself. This assumption is made because, otherwise, according to the defence argument, these two counts would otherwise fail in any event for the reasons particularised unde (a) and (b).

The third argument is this: the Crown must demonstrate that the accused knew that the documents in question were connected with preparation for the terrorist acts particularised. The Crown, however, has been unable to prove that the accused had formed the intention to prepare an action in respect of those specific particularised targets. Since the Crown’s evidence at best establishes future, conditional intention and not an intention concurrent with the acts alleged, counts 1 and 3 cannot be made out.

204 In giving judgment, his Honour referred to this passage of his own judgment delivered on 14 February 2006, dealing with the terms of the indictment -

The general framework of Part 5.3 of Ch 5 of the Code supports the conclusion I have reached in the following way: the type of action that is made criminal in terms of the division ranges from actually engaging in a terrorist act (s 101.1) down to an act that is altogether preliminary to that engagement: for example, receiving training connected with preparation for a terrorist act (s 101.2(1) and (2)); possessing a thing connected with preparation for the engagement of a person in, or assistance, in a terrorist act (s 101.4(1) and (2)); possessing a thing connected with preparation for the engagements of a person in, or assistance in, a terrorist act (s 101.4(1) and (2)); collecting or making a document connected with the preparation for, the engagement of a person in, or assistance in, a terrorist act (s 101.5(1) and (2)); and doing an act in preparation for or planning a terrorist act (s 101.6).

The wide range of activities made significantly criminal is itself postulated on the possibility that the criminal offence will or may occur long before any terrorist act itself is carried out. Indeed, apart from the offence of engaging in a terrorist act, each of ss 101.2, 101.4, 101.5 and 101.6 makes it clear that the offence is committed even if “the terrorist act does not occur”. (As I have already concluded, this is a reference to the phrase “a terrorist act” where relevantly appearing in relation to each section creating the offence). Against this background it would be expected, as a matter of logic and commonsense, that the definition of “terrorist act”, would fit in with the concepts revealed by the type of activities that might be expected to be quite preliminary to but connected with the preparation for a terrorist act. As I said in my earlier decision it would, as a matter of logic and commonsense, hardly be expected that cities would be bombed and scores of people killed before the legislation would have the capacity to bite.

What then there does the definition of terrorist act do and how does it fit into the legislative framework I have identified?

I have earlier set out the text of the definition of “terrorist act”. First, the Crown must prove that “an action or threat of action” (relevantly for the present offences a contemplated action) is to be done with the intention of advancing a political, religious or ideological cause. Pausing there, it is appropriate to make two observations. The first is that this may not necessarily be the intention of the person charged with the preliminary action connected with the preparation for a terrorist act. I shall return to this concept later. The second is to observe that the intention to be proved relates to the character of the terrorist act intended to be carried out. Of course, it may also be the intention of the accused and, in fact, the intention of those who are proposing to carry out the act of terrorism. The cause may well be political, religious and ideological but the section requires that it be at least one of these.

Secondly, the Crown must prove the action is done with the intention of coercing, or influencing by intimidation, the nominated governments; or it must be done with the intention of “intimidating the public or a section of the public”. Again, the expression “the action” in 100.1(c) is clearly a reference to the phrase “an action or threat of action” where appearing in the first line of the definition.

Thirdly, sub-s (2) of 100.1 lists the characteristics of “an action or threat of action”. Again, the Crown must prove this element beyond reasonable doubt. The matters that fall within the sub-section are of the broadest possible kind. “Action” falls within the sub-section, for example, if it causes serious harm (physical harm) to a person; or causes serious damage to a property. “action” falls with the sub-section if it causes a person’s death; or endangers a person’s life; or creates a serious risk to the health or safety of the public or a section of the public; or seriously interferes with, seriously disrupts “or destroys an electronic system”. The systems enumerated include but are not limited to the widest possible range of public utilities and government services.

Finally, the Crown must prove that “the action” (again a reference to “an action or threat of action”) does not fall within s 3. Again this is an element that must be proved beyond reasonable doubt.

So it will be seen that the definition of “terrorist act” postulates an action or threat of action of the widest possible kind. Relevantly, for the trial of the present accused, the alleged “possession” and “collection”, must be shown to have been “connected with” the preparation for a terrorist act; in the case of s 101.6 “the doing of an act” must be “in preparation” for a terrorist act.

The width of the definition of “terrorist act” supports the notion that the Crown will prove this element of the case beyond reasonable doubt (or perhaps more accurately this aspect of the relevant element) if it establishes any one of the characteristics of the contemplated action as is specified in s 100.1(2). The nature of the action, however, may make it quite plain that it possesses a number of the characteristics that are enumerated in the sub-section. For example, if the contemplated action relates to the explosion of a large bomb during working hours in a city building, it may well establish characteristics that include physical harm to a significant number of people; serious damage to a building and the death of a number of people and the endangering of many peoples’ lives. Depending on the nature of the building and its function in the government or state system, it may well be that it will also possess the characteristic of seriously interfering with the systems referred to in 100.1(2)(f). On the other hand, by way of example, the intended action may be the administration of poison to but one person. In my opinion, however, the Crown would be obliged to prove beyond reasonable doubt that the intended action possessed at least one of the characteristics mentioned in the sub-section. If, however, it possessed more than one of those characteristics, it does not seem to me that more than one offence is created.

205 His Honour then referred to these portions of the judgment of this Court in R v Lodhi [2006] NSWCCA 121 -

[64] As Whealy J shows, the context of the sections and the scope and purpose of the legislative scheme confirms the interpretation suggested by the words creating each offence.

[65] Each of the offence sections is directed to the preliminary steps for actions which may have one or more effects. By their very nature, specific targets or particular effects will not necessarily, indeed not usually, have been determined at such a stage. In the present case, no complaint is made about Count 1 which identifies the terrorist act as bombing an unspecified “part” of the electricity system.

[66] Preparatory acts are not often made into criminal offences. The particular nature of terrorism has resulted in a special, and in many ways unique, legislative regime. It was, in my opinion, the clear intention of Parliament to create offences where an offender has not decided precisely what he or she intends to do. A policy judgment has been made that the prevention of terrorism requires criminal responsibility to arise at an earlier stage than is usually the case for other kinds of criminal conduct, e.g. well before an agreement has been reached for a conspiracy charge. The courts must respect that legislative policy.

...

[77] Nothing like that (meaning ambiguity in pleading) has happened here. In the case of each count the effects of an explosion (Counts 2 and 3) or the selection of a target is not necessarily, indeed not usually, determined at the time of the ‘doing’, the ‘making’, or the ‘possessing’. That is the point of making preparatory acts offences. It is not appropriate, let alone required, that each effect or each target be the subject of a separate count. What has been made an offence includes conduct where an offender has not decided precisely what he or she intends to do.

...

[87] The submissions on behalf of the Applicant and the submissions on the part of the Crown focused on whether or not the reference to “intention” in s100.1(1)(c) – referred to in the Applicant’s submissions as either a motivation or a purpose – was a fault element of the offence and, as such, an essential element. The Crown relied upon the reasons of Whealy J for the rejecting this contention.

[88] I have set out the counts in the Indictment above. That part of each of Counts 2, 3 and 4 discussed under the heading of “Duplicity” above, concerned with the results of the terrorist act in terms of death, serious physical harm or serious damage to property represents the identification of some of the list of matters set out in subs (2) of the definition of terrorist act which are applied by par (a) of that definition. The Crown has, accordingly, pleaded in each count one part of par (a), relating to subs (2) of the definition. It has not pleaded the second part of par (a) namely the proposition that the alleged actions did not fall within subsection (3). Nor has it pleaded the “intention” referred to in either par (b) or par (c) of that definition. The issue is whether or not these matters constitute an essential element of the offence. In my opinion they do.

[89] This may not prove to be of great practical significance because on my above reasoning, in the context of dealing with the duplicity argument, the approach in Romeyko would apply equally to the respective component parts of the definition of “terrorist act”. An action falling within subs (2) will frequently be motivated by more than one “cause”. Motivations of a “political, religious or ideological” character frequently overlap. Similarly, an action falling within (2) of the definition will often tend to coerce or influence by intimidation more than one government, as well as intimidate the public or a section of the public. Contrary to the submissions of the Applicant, the further definition of the offence may not be of significance in restricting the scope of admissible evidence. Nevertheless, they should be so specified as an essential ingredient.

[90] The references to “intention” in each of pars (b) and (c) of the definition of “terrorist act” are not fault elements of the offence. Rather they identify the character of the action that falls within (2) of the definition. This is a physical element, being a “circumstance” within s4.1(1)(c) of the Criminal Code. Accordingly, it is not, in my opinion, an essential element of the offence that an accused charged with doing any one of the acts identified in s101.4, s101.5 or s101.6 must himself or herself have the intention that the act advances a particular cause or is done with the requisite purpose of coercion or intimidation. Nevertheless, as an essential physical element, each of pars (b) and (c) should be pleaded, but no particularity is required as to the person who had the relevant “intention”. Of course, if the Crown was to assert that it was the Applicant who had the intention, it could plead or particularise that aspect of the case.

[91] The relevant fault element is knowledge of the connection, as specified in s101.4(1)(c) and s101.5(1)(c). In the case of s106.1 it is recklessness by force of s5.6(2) of the Criminal Code. Counts 3 and 4 plead knowledge. However, Count 2 does not plead recklessness. It should.

206 Whealy J continued -

These observations make it clear that s 100.1(b) and (c) are concerned to identify the character of the action that falls within sub-section (2) of s 100. Each of those characteristics is an essential element of the offence. The Chief Justice’s remarks, however, make it clear that it is not an essential element of the offence that an accused charged with doing any one of the acts identified in ss 101.4, 101.5 or 101.6 must himself or herself have the intention that the act is done to advance a particular cause or is done with the requisite purpose of coercion or intimidation. Each of paras (b) and (c) should be pleaded as an essential physical element but no particularity is required as to the person who had the relevant “intention”.

From this analysis, I would respectfully conclude that what has to be pleaded and in fact proved is that the action contemplated is to be done or a contemplated threat is to be made with the intentions mentioned in (b) and (c). Evidence of these matters may not necessarily coincide with the intentions of the person charged or, for that matter, with the intentions of the person who may ultimately carry out the bombing attack. It may do, of course but the circumstances of each case will certainly differ. Moreover, as I have noted in my earlier decision, the legislation is sufficiently wide to make the doing of a preliminary act a criminal offence even where the ultimate target has not been selected or, for that matter, the ultimate perpetrator of the attack has not been selected. There will, of course, have to be a body of evidence from which a jury could conclude that the collection of the document, for example, was connected with preparation for an action intended to advance a religious cause and intended to coerce or intimidate the Government. But it is not necessary that the evidence take the form of evidence directly attributable to the state of mind of the ultimate bomb carrier. Indeed, such a mandatory requirement would be contrary to the very nature of the legislation, which makes even the most preliminary of acts in connection with preparation for a terrorist act a criminal offence. The legislation is designed to cut off the terrorist attack long before it culminates in an action of potential mass destruction and damage.

207 In my opinion his Honour correctly refused to direct verdicts of not guilty. The Crown case was capable of proving that when he did each actus reus, the collection, the preparation and the possession pleaded, he did so deliberately with the relevant motivation. As the Chief Justice said, these sections of the Code make offensive preparatory acts done at a time when the actor has not decided precisely what he or she intends to do. Accordingly, it did not matter that the evidence could not prove that the appellant had determined when, how, where or by whom the terrorist act might be carried out. The offence charged in each count was complete if the Crown proved that the relevant act was done with the state of mind pleaded, that is, the knowledge of the appellant of the necessary connection.

208 In my opinion this ground of appeal has not been made good.

209 Accordingly, I would dismiss the appeal against conviction.

The application for leave to appeal against sentence

210 I agree, for the reasons stated by Price J, that leave should be granted to appeal against sentence and that the appeal should be dismissed.

211 I agree with the remarks of the Chief Justice. Ss101.4, 101.5 and 101.6 of the Criminal Code make offensive acts of a preliminary nature falling short, some well short, of attempt. Because of their especially serious nature and the commensurate need to protect the public from the consequences that might follow, the legislature has prescribed very long maximum sentences.

212 It is important to have in mind when considering the English cases that in recent times there has been statutory sanction in that jurisdiction for the imposition of sentences longer than commensurate with the seriousness of offences in order to protect the public from serious harm from offenders: see Criminal Justice Act 1991, s2; Criminal Justice Act 2003, Ch 5, particularly s227.

213 In sentencing for offences of the present kind there is no power in the Australian jurisdiction equivalent to that in s2(2)(b) to impose a term longer than one commensurate with the seriousness of the offence in order to protect the public from serious harm from the offender. In the absence of statute, the protection of the community cannot in this jurisdiction justify a sentence which is out of proportion to the seriousness of the offence committed: Chester v The Queen [1988] HCA 62; (1998) 165 CLR 611; Veen v The Queen (No2) [1988] HCA 14; (1988) 164 CLR 465.

214 Nevertheless, as Veen v The Queen (No2) and other cases make clear, the purposes of sentencing include the protection of the public. Offences of the present kind give rise to a special need for courts to impose sentences which give the community the protection it is entitled to expect.

215 PRICE J: I have had the opportunity of reading the drafts of the judgments prepared by Spigelman CJ and Barr J in the conviction appeal. I agree with each judgment.

216 There are four grounds of appeal which are maintained by the appellant in relation to his sentence which are:

1. His Honour’s assessment of the objective seriousness of the offence was flawed;

2. His Honour failed to give sufficient weight to the custodial conditions to which the appellant would be subject;

3. His Honour did not reduce the head sentence in consequence of

s 19AG Crimes Act 1914 (Cth);

6. The sentence was manifestly excessive.

Grounds 4 and 5 which challenge the constitutional validity of s 19AG of the Crimes Act have been abandoned.

Subjective Circumstances

217 The appellant was born at Sialkot in the Punjab region of Pakistan and was 36 years old at the time of sentence. He has no prior convictions either in Australia or Pakistan. He obtained a degree in architecture from Lahore University when he was about the age of 24 and, after a brief period of indenture, commenced a general architecture practice in Lahore which continued until 1997. In 1998 the appellant migrated to Australia enrolling at the University of Sydney and graduated with a Bachelor of Architecture Degree in 2000. He applied for registration with the New South Wales board of architects. Certificates of Quality Management and Total Quality Management were obtained after further training at the Ultimo College of TAFE. At the time of his arrest, he was completing a Masters Degree in Construction Management at the University of New South Wales and was working for an architect’s firm at Alexandria.

218 The Judge observed that “the [appellant] has, throughout his life, demonstrated and maintained a solid and prodigious work ethic”: Lodhi at [59].

219 The appellant was married in 1999. His wife is a qualified medical practitioner in Pakistan and undertook additional studies after her arrival in Australia in order to obtain registration as a doctor in this State. There are no children of the marriage.

220 Before the Judge was a report from Mr Tim Watson-Munro, a psychologist. The psychologist concluded that there was nothing in the appellant’s prior history, nor emerging from his discussions with him, to indicate a violent disposition nor were there any features of an anti-social personality. He said the task in determining whether the appellant might pose a risk upon his release was a difficult assessment to make in the light of the appellant’s continued claim to be innocent notwithstanding the jury’s verdict. The psychologist, however, said that there was no previous involvement with the police or courts, rather there was a history of a hard working devout man who was well supported by those of his family who were in Australia. All of these matters the psychologist considered to be positive prognostic indictors. The appellant told the psychologist of the difficult system of incarceration he was enduring, having regard to his classification as an AA inmate. Notwithstanding these difficulties, he appeared to be coping quite well with the situation.

221 A number of the appellant’s family friends gave evidence during the trial. They all attested to his non-violent personality, his devotion to his work and his satisfactory relationship with other people. The Judge said that “All of these matters...stand in stark contrast to the circumstances of the offences committed by the offender and the intentions, which I have found he possessed at the time of the commission of the offences”: Lodhi at [64].

222 Ground 1 of the sentence appeal raises the issue of Whealy J’s assessment of the appellant’s criminal culpability which he found to be “at a high level, although falling short of the worst category of case” R v Lodhi [2006] NSWSC 691 at [55].

223 In assessing the level of criminal culpability involved his Honour was satisfied beyond reasonable doubt:

(i) The assembling of the 15 page Urdu document, the act of writing it out in the Urdu language, the efforts put into the purchasing of the electricity supply maps from the ESAA and the enquires to Deltrex Chemicals demonstrated a significant degree of premeditation and planning.

(ii) At the time of the collection of the ESAA maps and of the enquiries made to Deltrex Chemicals the appellant had in mind an ultimate act which would involve the detonation of an explosive so as to cause at least very serious damage to property.

(iii) The appellant would have been aware, or at least would have contemplated, there was a risk of serious physical harm or death to persons in the vicinity.

(iv) It was clearly the jury’s conclusion that, at the relevant times, the appellant intended to obtain the maps and the list of chemicals with a view to their use in a plot to cause the detonation of an explosive or explosives that would advance the cause of violent jihad and intimidate the government and the public.

(v) In the circumstances of all three offences, there was one continuing uninterrupted course of conduct centring upon an enterprise to blow up a building or infrastructure.

(vi) The appellant maintained a general intention relating to terrorist activities at least up until the time of his arrest.

(vii) The action carried out by the appellant may properly be regarded as at a very early stage of any terror related enterprise.

(viii) The appellant’s actions displayed an intention on his part that a violent terrorist act or acts would be carried out in Australia. This was intended, in effect, to be a general attack on the community as a whole.

224 Mr Boulten SC had contended before Whealy J that the appellant’s culpability was at a low level. One of the reasons advanced was that the appellant held the requisite intentions for a very limited period of time and certainly not beyond the date of the seizure of the Urdu document on 26 October 2003. The Judge rejected this argument and found, as has been recited, that a general intention relating to terrorist activities was maintained at least up until the time of his arrest. Whealy J said in rejecting the appellant’s contention:

“...There is not the slightest evidence to suggest that he had renounced his former intentions. They were, I am satisfied beyond reasonable doubt, intentions he held with great vigour and firmness. They were the consequence of a deeply fanatical, but sincerely held, religious and worldview based on his faith and his attitude to the extreme dictates of fundamentalist Islamic propositions. It is hardly likely that a handful of searches and bout of questioning, unnerving though they doubtless were, would have led him to renounce the views, so deeply held by him”: Lodhi at [49].

225 The appellant submits that his Honour was in error in making this finding. It is common ground that no criminal or terrorist related activity had been observed of the appellant between 26 October 2003 and the date in late April 2004 when the appellant was arrested. Mr Boulten SC submits that the evidence was not available to conclude that, even six months after the appellant became aware of the interest of the police and authorities, he still maintained an intention to carry out any terrorist activity.

226 His Honour had earlier referred to the appellant’s association with Willie Brigitte, the man Sajid in Pakistan and to the material in the CD- rom described throughout the trial as the “jihadi CD”. The Judge found that the material made it clear that the appellant was a person who in recent years had been informed by the concept of a violent jihad and the glorification of Muslim heroes who fought and died for jihad: Lodhi at [18-21]. There was ample evidence from which his Honour could conclude that the appellant held his intentions with great vigour and firmness as a consequence of deeply fanatical views. It was plainly open to the Judge to reject the appellant’s argument and to find beyond reasonable doubt that he maintained a general intention relating to terrorist activities at least up until the time of his arrest.

227 His Honour erred, Mr Boulten SC submits, by concluding that the objective seriousness was significant despite the [offending] acts being at a preliminary stage. Although it is true, Mr Boulten SC concedes, that the purpose of the legislation is to criminalise preparatory acts the level of culpability must necessarily depend, he submits, on the proximity between the appellant’s act and any potential terrorist act.

228 The proximity of the offending act to the substantive offence is of relevance in the assessment of the culpability of an attempt to commit a crime. With the relevant state of mind the offender must do some act towards the commission of the offence which goes beyond mere preparation and which cannot reasonably be regarded as having any purpose other than the commission of the intended crime: R v Mai (1992) 25 NSWLR 371. The unlikelihood of success of an attempt, although the ultimate crime is physically possible, is relevant to the consideration of the objective seriousness of the offence. The inter-relationship between the seriousness of the intended consequences and the real prospects of achieving them is a factor to be weighed in the light of all the circumstances: R v Taouk (1992) 65 A Crim R 387.

229 The present offences, however, are not crimes of attempt. Sections 101.4, 101.5 and 101.6 of the Criminal Code Act 1995 (the Criminal Code) extend criminal liability to acts of preparation. The proximity between the criminal act and the commission of the substantive offence is necessarily more remote. These are anticipatory offences which enable intervention by law enforcement agencies to prevent a terrorist act at a much earlier time than would be the case if they were required to wait for the commission of the planned offence or for an unsuccessful attempt to commit it. The proximity between the preparatory act and the completion of the offence, although relevant, does not determine the objective seriousness of such an offence. It does not follow that as long as the preparatory acts relied upon to constitute the offences are in their infancy criminal culpability must necessarily be low. The main focus of the assessment of objective seriousness must be the offender’s conduct and the offender’s intention at the time the crime was committed.

230 Having found that the appellant’s acts were at a very early stage, Whealy J determined that an evaluation of criminal culpability required analysis not only of the act itself but an examination of the nature of the terrorist act contemplated particularly in the light of the appellant’s intentions or state of mind. The three offences were to be viewed, his Honour said, in their entirety. The Judge pointed out that the very purpose of the legislation is to interrupt the preparatory stages leading to the engagement in a terrorist act so as to frustrate its ultimate commission. I see no error in his Honour’s reasoning.

231 Mr Boulten SC further argued that a distinction should be drawn between offenders who are part of well-developed plans and those whose plans remain largely exploratory. It was pointed out by senior counsel that during the sentencing proceedings the Crown had been unable to establish when, how, where or by whom the terrorist act was to be carried out. As a result the appellant, Mr Boulten SC contends, should be treated at the lower end of the scale of culpability.

232 An inevitable consequence of early intervention by the law into acts of preparation is that definitive conclusions might not be able to be reached about the viability, sophistication or indeed the offender’s role in the ultimate offence. But that does not mean that the act which constitutes the offence charged will not be regarded as serious.

233 In the present case his Honour was not satisfied beyond reasonable doubt that the appellant had at any time made up his mind that it would be he who would carry out the bombing of the Australian electricity supply. His Honour was satisfied that the proposal had not reached the stage where the identity of a bomber, the precise area to be bombed or the manner in which the bombing would take place had been worked out.

234 The Judge, however, found that there was a significant degree of premeditation and planning involved in the assembling of the Urdu document, the act of writing it out in the Urdu language, the efforts put into the purchasing of the maps and the enquiries made to Deltrex Chemicals. He was satisfied beyond reasonable doubt that the appellant intended to detonate an explosive device so as to cause at least very serious damage to property and that he would have been aware, or at least would have contemplated, there was a risk of serious physical harm or death to persons in the vicinity.

235 The next point argued for the appellant is that his Honour erred in determining that the objective seriousness of count 2 was greater than the objective seriousness of counts 1 and 4 and the sentence for count 2 should not have exceeded the sentences for counts 1 and 4. The head sentences for counts 1 and 4 are 10 years whereas the head sentence for count 2 is 20 years.

236 Whealy J said in Lodhi at [69] that there were a number of reasons why he considered count 2 to be a more serious offence than counts 1 and 4:

“First, the offence in count 2 carries with it as I have earlier noted, a maximum sentence of life imprisonment. Parliament considers it a more serious offence than each of the offences the subject of counts 1 and [4]. Second, it is a more serious offence because, the act of preparing for a terrorist act is the carrying out of a preliminary action that is, by its nature, closer to the commission of the ultimate terrorist act than the offences contemplated in ss 101.4 and 101.5 of the Criminal Code. Thirdly, the offender’s actions in making the enquiries of Deltrex Chemicals in the present matter were, in fact, actions that brought him that much closer to the carrying out of an act of terror than did the other preliminary actions for which he has been convicted.”

237 The appellant criticises the second and third of his Honour’s reasons. Mr Boulten SC argues that the second reason is not supported by statutory language since both ss 101.4 and 101.5 refer to the “preparation for...a terrorist attack”. Furthermore, the acts charged in count 2 were, as a matter of fact, every bit as remote from a terrorist act as were the acts charged in counts 1 and 4.

238 Section s 101.4(1), 101.5(1) and 101.6 are found in Part 5.3 Division 101 of the Criminal Code:

“Possessing things connected with terrorist acts

101.4 (1) A person commits an offence if:

(a) the person possesses a thing; and

(b) the thing is connected with preparation for, the engagement

of a person in, or assistance in a terrorist act; and

(c) the person mentioned in paragraph (a) knows of the connection described in paragraph (b).

Penalty: Imprisonment for 15 years.”

“Collecting or making documents likely to facilitate terrorist acts

101.5 (1) A person commits an offence if:

(a) the person collects or makes a document; and

(b) the document is connected with preparation for, the

engagement of a person in, or assistance in a terrorist act; and

(c) the person mentioned in paragraph (a) knows of the connection described in paragraph (b).

Penalty: Imprisonment for 15 years.”

“Other acts done in preparation for, or planning, terrorist acts

101.6 (1) A person commits an offence if the person does any act in preparation for, or planning, a terrorist act.

Penalty: Imprisonment for life.”

239 It is evident that s 101.6 requires the doing of an act in preparation for a terrorist act whereas ss 101.4 and 101.5 speak of the possession of a thing or making of a document which is connected with the preparation of a terrorist act. The doing of an act is necessarily closer to the commission of the ultimate terrorist act than the possession of a thing or the making of a document which is said to be connected with the preparation for the terrorist act.

240 An assessment of the objective seriousness of the offender’s conduct in committing the offence contrary to s 101.6 is not confined to the appellant’s enquiry to Deltrex Chemicals. The information was sought after the appellant had collected the ESAA maps. The list obtained from the chemical company provided prices for urea and nitric acid which were components from which a urea nitrate bomb might be made. He had the intention of blowing up a building or infrastructure to advance the cause of violent jihad and to intimidate the government and the public. The Urdu document which was in his possession included formulas for the manufacture of a urea nitrate bomb which was easy to make. The enquiry was the third step which the appellant had taken along the intended path towards a violent terrorist act. Although he may not have advanced a sufficient distance in his journey for his actions to amount to more than preparation, what must be borne in mind is the intended destination. An explosion of a urea nitrate bomb had the capacity to significantly damage property and cause substantial loss of life and injury. An act done in preparation for a terrorist act is punishable by imprisonment for life. The maximum penalty is intended to reflect the severity with which the legislature regards the offence.

241 Mr Boulten SC further submits that an offence under s 101.6 covers a variety of intentions and actions. For example, an action may involve, he submits, the making of enquiries about the pricing and availability of chemicals at one end of the spectrum and the placing of a bomb in a building at the other end of the spectrum. The intention may involve the causing of property damage at one end and the causing of death at the other end. It is submitted that his Honour placed too much weight on the perceived intention of the legislature and did not pay sufficient regard to the facts of the case. The appellant criticises the first reason given by the Judge in the passage which is quoted at paragraph 21 supra.

242 Acts done in preparation for, or planning, a terrorist act undoubtedly can embrace a wide range of conduct. As was said by the High Court in Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447 at 452:

“When an offence is defined to include any of several categories of conduct, the heinousness of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case.”

243 The purchasing of the chemicals and the making of a urea nitrate bomb are likely to be regarded as more heinous than the appellant’s conduct in this case. An intention to take human life is more heinous than an intention to cause significant damage to property: R v Roche [2005] WASCA 4; (2005) 188 FLR 336 at [119]. But that does not lead to the conclusion that the appellant’s acts and intentions are not appropriately regarded as being of high level, although falling short of the worst category of a preparatory act. A settled intention to cause an explosion puts an offence high on the scale of gravity as does an offence which threatens the daily lives and livelihood of many people: Roche at [119]. An act done in preparation for such a terrorist act is a very serious offence.

244 The maximum penalty of life imprisonment is not irrelevant to the sentencing task. It is the maximum penalty which has been legislated by Parliament. The maximum penalty serves as a yardstick or as a basis of comparison between the case before the Court and the worst possible case: Markarian v The Queen [2005] HCA 25; (2005) 79 ALJR 1048 at [31].

245 His Honour did not err in determining that the objective seriousness of count 2 was greater than the other counts for which the appellant was to be sentenced.

246 The appellant contends that his Honour erred in finding that the appellant wished to coerce the Australian government and intimidate the public generally. Mr Boulten SC submits that there was no evidence before the Judge, which would have permitted him to conclude that the appellant intended to intimidate the public generally.

247 Whealy J found that the appellant undoubtedly had in mind to damage some part of the electricity system but there was no evidence from which he could conclude the precise nature of the ultimate target to be hit.

248 The supply of electricity underpins modern society. Australians are dependant upon an efficient and continuous supply. Damage to the electricity system by an explosion could potentially threaten the every day lives of many people. The capacity to intimidate by targeting essential infrastructure at a time when the public is apprehensive of terrorist attacks is obvious.

249 Although the appellant did not specifically target any members of the public, it would have been plain to him that the Australian people would be intimidated by an attack on the electricity supply system. His Honour was entitled to find that the appellant’s intention was to carry out a general attack upon the community as a whole and was intended to intimidate the public generally.

250 I am of the opinion that his Honour’s assessment of the objective seriousness of the offence was not flawed.

251 Ground 2 (on sentence) is that his Honour failed to give sufficient weight to the custodial conditions to which the appellant would be subject.

252 The appellant’s first submission is that his Honour erred in assessing the impact upon the appellant of the harsh conditions to which he would be subject during his time in custody. This was accompanied by the submission that the Judge erred by relying upon the fact that the appellant may be reclassified at a future point.

253 Whealy J gave extensive consideration to the conditions of the prisoner’s custody: Lodhi at [76-89]. There was evidence before him that except for a brief period he was placed in segregated custody the reality of which his Honour found to be solitary confinement. The Judge detailed the conditions of the appellant’s custody including being shackled when out of his cell, constantly monitored and filmed by video camera. He acknowledged that the conditions of the appellant’s imprisonment while ever he remains classified AA would be harsh. His Honour was of the view that he was entitled “to make some allowance in the sentencing process for the conditions of imprisonment”: Lodhi at [88]. The Judge said:

“In the present matter, however, I do not consider that the allowance should be in any sense a substantial one, or even one that can or should be mathematically calculated. It needs to be borne in mind that the offender is in fact coping very well with his prison situation and that this is no doubt, at least in part, occasioned by his religious convictions. Second, it is clear that his classification is not set in concrete and that the possibility of a less onerous re-classification is by no means out of the question. As the sentencing judge, I would recommend to the prison authorities that they ought not lose sight of the need to consider the re-classification of the offender at a relatively early stage during his prison term.”

254 His Honour was required to take into account in favour of the appellant the segregated pre-sentence custody and the likelihood it would continue in determining the length of the sentences to be imposed: Regina v Totten [2003] NSWCCA 207; R v Burchett (1987) 34 A Crim R 418. It is evident that he did so. It is the insufficiency of the allowance about which the appellant complains. There was evidence before the Judge that the appellant had been coping well in custody. Furthermore, whilst it had been conceded by Mr McClintock, a correctional officer, that it was possible there would be at least a marked delay in the appellant’s progress from the AA category to a less onerous classification, there was evidence that his classification was “not set in concrete”. These were circumstances that the Judge was entitled to take into account in determining what weight should be given to the conditions of the appellant’s custody. His Honour was not obliged to conclude that the appellant would serve the whole of his sentence in solitary confinement. He was required to make a prediction about the conditions in which the sentence would be served: Totten at [43]; R v Mostyn [2004] NSWCCA 97 at [180]. Whealy J’s assessment that the allowance should not be “substantial” does not mean that his Honour did not give real weight to the appellant’s custodial conditions. This was a matter within his Honour’s discretion and no error in the exercise of the discretion has been demonstrated. This ground of appeal accordingly fails.

255 Ground 3 of the sentence appeal is that His Honour erred in not reducing the head sentence in consequence of s 19AG Crimes Act.

256 As the submission advanced on behalf of the applicant relates to the provisions of s 19AG of the Crimes Act, it is convenient to set out that section. It provides as follows:

“Non-parole periods for sentences for certain offences

19AG (1) This section applies if a person is convicted of one of the following offences (each of which is a minimum non-parole offence) and a court imposes a sentence for the offence:

(a) an offence against section 24AA;

(b) a terrorism offence;

(c) an offence against Division 80 or 91 of the

Criminal Code.

Note: A sentence for a minimum non-parole offence is a federal sentence, because such an offence is a federal offence.

(2) The court must fix a single non-parole period of least ¾ of:

(a) the sentence for the minimum non-parole offence;

or

(b) if 2 or more sentences have been imposed on the

person for a minimum non-parole offences – the

aggregate of those sentences.

The non-parole period is in respect of all federal sentences the person is to serve or complete.

(3) For the purposes of subsection (2):

(a) a sentence of imprisonment for life for a minimum

non-parole offence is taken to be a sentence of

imprisonment for 30 years for the offence; and

(b) it does not matter:

(i) whether or not the sentences mentioned in that subsection were imposed at the same sitting; or

(ii) whether or not the convictions giving rise to those sentences were at the same sitting; or

(iii) whether or not all the federal sentences mentioned in that subsection are for minimum non-parole offences.

(4) If the person was subject to a recognizance release order, the non-parole period supersedes the order.

257 The appellant submits that s 19AG does not affect the length of the non-parole period which the Court would have imposed in the absence of the provision. The appellant refers to the established sentencing practice before the introduction of the section that the non-parole period for Federal offences would normally be in the range of 60-75 per cent of the head sentence with 75 per cent being reserved for the worst cases. Should Parliament have intended to create a sentencing provision that was designed to lead to disproportionate sentences, Parliament should, the appellant submits, clearly have said so. Section 19AG is no more, the appellant argues, than an expression of the legislative presumption that rehabilitation plays a less significant role in the sentencing of persons convicted of a “terrorism offence”. The provision does not, however, mandate an increase in the non-parole period of an offender.

258 The appellant’s argument is founded on the proposition that the non-parole period is imposed first and then the head sentence is determined. This proposition is contrary to sentencing principle. The duty of the Court in imposing a sentence for a federal offence is to impose a sentence that is of a severity appropriate in all the circumstances of the offence: s 16A(1) Crimes Act. The Court must take into account all the matters identified in s 16A(2) in determining a sentence proportionate to the wrong-doing: Wong v The Queen [2001] HCA 64; [2001] 207 CLR 584 at [71]. It is only after a proportionate sentence is imposed that the Court is to fix a non-parole period or make a recognizance release order: s 19AB Crimes Act.

259 The determination of the appropriate non-parole period for offences in breach of the criminal law of the Commonwealth involves the exercise of judicial discretion. As was observed by Meagher JA with whom Wood CJ at CL and Studdert J agreed in R v John Viana [2001] NSWCCA 171 at [3]:

“The principles of law applicable in this area have been laid down by this court in Bernier v R (1998) 102 A Crim R 44. There is in fact no statute which requires the non-parole period to bear any particular proportion in relation to the head sentence, nor is there any mandatory precedent in this Court which requires a fixed sentence. The most that can be said is that this Court has usually in cases of this sort, thought the proportion ought to be somewhere between 60 and 66 per cent. This is not to say that higher percentages cannot stand.”

260 Factors identified as material to the determination of the appropriate ratio for a non-parole period include the length of the head sentence and its position in the permissible range: see Bernier at 49 and Sweet [2001] NSWCCA 445; 125 A Crim R 341 at 346; the seriousness of the offence and the prospects of rehabilitation: see Stitt (1998) 102 A Crim R 428 and Meloh [2001] NSWCCA 211 at [10] and the need to ensure that the sentence reflects the criminality involved and does not lose the important significant effect of general deterrence (see Drazkiewicz, unreported, Court of Criminal Appeal, 23 November 1993 unreported).

261 Section 19AG imposes a statutory fetter upon the exercise of judicial discretion by prescribing a non-parole period of at least ¾ for those offences found in s 19AG(1) which are described as “minimum non-parole” offences. A “terrorism offence” is a minimum non-parole offence: s 19AG(1)(b). Section 3 defines a “terrorism offence” to include offences against Part 5.3 of the Criminal Code within which Part the offences of which the appellant was convicted fall. Section 19AG does not detract in any way from the obligation of a sentencing Judge to first impose a proportionate sentence before considering the non-parole period.

262 Whealy J rejected the appellant’s submission that because of the operation of s 19AB it was necessary to fix a lower head sentence than might otherwise have been appropriate. His Honour did not err in doing so and this ground of appeal fails.

263 Ground 4 of the sentence appeal is that the sentence was manifestly excessive. I have previously indicated that there was no error in the assessment of the appellant’s criminal culpability. The appellant submits that this Court would be assisted by a consideration of cases from foreign jurisdictions and in particular cites R v Abu Baker Mansha [2006] EWCA Crim 2051 and R v Boutrab [2005] NICC 36 in support of the ground of manifest excess as the facts of both cases are said to be remarkably similar to those of the case brought against the appellant. Mr Boulten SC argues that Whealy J erred in refusing to be assisted by these decisions in reliance of what was said by this Court in R v Brownlowe [2004] NSWCCA 465.

264 Mansha was convicted, following a trial, of an offence of possessing information likely to be useful to a person committing or preparing an act of terrorism contrary to s 58(1)(b) of the Terrorism Act 2000 (UK). The Anti Terrorist Squad and Firearms Squad had raided the offender’s flat and found a number of documents. The first of those was a newspaper article about a soldier who had been decorated for gallantry in Iraq. On a separate sheet of paper the offender had written down the soldier’s name and full address. In fact, the soldier had moved away from that address and at the time of the search was no longer resident at the address recorded on the sheet of paper. An A4 refill pad was also recovered and forensically examined. From the indentations on the pad it was established that the appellant had written away concerning two prominent Jewish men and two prominent Hindu businessmen. The officers also found a number of DVDs containing anti-western propaganda, Islamic propaganda praising martyrdom, others giving details of suicide car bombings against the British and against the Russians in Chechnya. The offender was sentenced to imprisonment of 6 years. The maximum penalty for the offence was 10 years imprisonment. The English Court of Appeal Criminal Division dismissed the offender’s appeal against the sentence and in doing so made remarks from which the appellant can derive little comfort. The Court said at [11]:

“We agree with the Judge that a person convicted of a terrorist offence must expect a substantial sentence to be imposed by the court. The court must impose such a sentence in order to serve as a deterrent to others and to mark the extreme seriousness of the criminality involved in terrorist activities.”

265 Boutrab involved an offender charged with one count of possession of articles for a purpose connected with terrorism contrary to s 57(1) of the Terrorism Act 2000 and one count of collecting information likely to be useful to terrorists contrary to s 58(1)(a) of the same Act. The substance of the case against the offender involved the possession of floppy discs which had been downloaded by him from a computer in the Belfast central library which contained information in connection with the making and use of explosives for attacks on aircraft and the manufacture of silencers for firearms. The offender was sentenced, it appears, at the Belfast Crown Court to imprisonment of 6 years. The maximum penalty for each offence was 10 years imprisonment.

266 Mr Boulten SC points out that in accordance with s 244 of the Criminal Justice Act 2003 (UK) Mansha (and presumably Boutrab) would be eligible for parole after three years.

267 The appellant, this Court is informed, is the first person to be convicted of offences connected with or acts done in preparation for terrorist acts. There is no established range of sentences for such crimes. The range of penalties imposed by overseas jurisdictions are, however, of no assistance in determining the sentencing range in New South Wales. This will be the case even when there is no established tariff in Australia for the offence. In Brownlowe Barr J explained at [46]:

“Conditions in such jurisdictions are likely to be different from those that obtain in this State. Maximum sentences are different; sentence structures and components are different; parole rules are different; offences may be different. Judges in such jurisdictions may take a more serious or more lenient view than New South Wales judges when deciding how to sentence.”

268 The cases of Mansha and Boutrab highlight the difficulties encountered in seeking assistance from sentencing trends in foreign jurisdictions. The statutory regimes which govern Mansha and Boutrab are plainly different to the Criminal Code and the Crimes Act which govern the present offences both as to maximum penalties, and as to the parole provisions. The offences of which the appellant is charged were introduced by the Security Legislation Amendment (Terrorism) Bill (2002) (The Terrorism Bill) which was the Commonwealth Parliament’s response to the changed security environment after 11 September 2001. The length of the sentences imposed in the cited cases provide no assistance to this Court and the Judge was right to have had little regard to them.

269 The sentencing experience of foreign courts may be helpful on matters of general principle when there is little or no familiarity with a particular offence in Australia. This was the approach taken by McKechnie J in Roche when he reviewed a number of English authorities from which he, in part, extracted the principles to be applied to that appeal. Roche was convicted with conspiring with others to commit an offence contrary to s 8 (3C)(a) of the Crimes (Internationally Protected Persons) Act 1976 (Cth) which was to damage by means of explosive the Israeli Embassy. It was said to be the first conviction in Australia for terrorist activity.

270 Whealy J gave careful consideration to Roche. Roche pleaded guilty during his trial and was sentenced to nine years imprisonment with a non-parole period of four and a half years. The maximum penalty for the offence was imprisonment for 25 years. He had entered into the conspiracy for political reasons with the intention to destroy or damage property. He further intended to endanger the lives of people by that destruction which was to be caused by an explosion. Between March and September 2000, Roche was actively engaged in the conspiracy and conducted photographic and video surveillance of the Israeli Consulate in Sydney and video surveillance of the Israeli Embassy in Canberra. He took preliminary steps for the acquisition of explosives. He purchased igniters. The conspiracy did not progress to the possession of explosives and the results of his surveillance were not passed on to the other conspirators. Roche was ambivalent for a time as to his further involvement in the conspiracy and eventually withdrew. By July he had attempted to make contact with ASIO and other attempts were subsequently made. He remained effectively in the community, inactive, for about two years until his arrest. Roche was found to pose no further risk and the prospects of his rehabilitation were considered to be excellent. The sentencing Judge discounted his sentence by a year for promised future co-operation. The discount allowed for the plea of guilty and past co-operation was two years. The Court of Criminal Appeal by majority (Murray ACJ and Templeman J agreeing with McKechnie J in dissent) dismissed the Crown appeal against the manifest inadequacy of the sentence.

271 Roche was an inadequacy appeal. The maximum penalty was 25 years and not life imprisonment. He had pleaded guilty and as Whealy J pointed out “his assistance to the authorities, both past and present, stand in stark contrast to the situation of the present offender”: Lodhi [at 98]. His Honour was entitled to conclude that the case of Roche was not of any great assistance.

272 The Judge detailed the principles to be applied in sentencing the appellant. He referred to the purposes of sentencing and the need to have regard to the provisions of ss 16A(1) and 16A (2) of the Crimes Act.

273 His Honour considered that the appellant’s subjective circumstances were “to be given less weight in the present matter than the important principles of general deterrence and denunciation”: Lodhi at [89]. His Honour said:

“The need for substantial sentences to reflect the principles of general deterrence are obvious in relation to crimes of this kind. Such crimes are hard to detect; they are likely to be committed by members of our own community and often by persons of prior good character and favourable background. One has only to consider the tragedy of the London bombings in 2005 to recognise this observation as a sad truism. Moreover, terrorism is an increasing evil in our world and a country like Australia, with its very openness and trusting nature, is likely to fall easy prey to the horrors of terrorist activities”: Lodhi at [91].

There was also he said, “a need to recognise that the imposition of a substantial sentence may have a personal impact as a deterrent on this offender”: Lodhi [at 92].

274 I detect no error in his Honour’s approach to the sentencing task. In determining the sentence to be passed the matters identified in s 16A(1) and s 16A(2) of the Crimes Act must be taken into account. These matters include the subjective circumstances of the offender: s 16A(2)(m); and the prospect of rehabilitation: s 16A(2)(n). Rehabilitation and personal circumstances should often be given very little weight in the case of an offender who is charged with a terrorism offence. A terrorism offence is an outrageous offence and greater weight is to be given to the protection of society, personal and general deterrence and retribution. In his careful and well-reasoned judgment, the Judge balanced the competing purposes of sentencing appropriately.

275 His Honour applied the principle of totality by directing that the sentences imposed be served concurrently. A single non-parole period of 15 years was set.

276 As I have stated, the appellant’s offence contrary to s 101.6 of the Criminal Code is a very serious crime. The maximum penalty is imprisonment for life. I am not persuaded that the sentence imposed for count 2 of 20 years imprisonment is manifestly excessive. The sentences imposed by the Judge do not manifest error. Ground 4 of the appeal fails.

277 I propose that leave to appeal be granted, but the appeal be dismissed.